2013 Federal Employees Almanac
Chapter 10: Agency Roles and Responsibilities
Last updated: July 9, 2013 (Title VII of the Civil Rights Act, Intellectual Disabilities, Diabetes as a disability, 2013 MSBP 49, distance learning)
- By Almanac Staff
- January 03, 2013
General Responsibilities and Procedures
The Office of Personnel Management (OPM), the federal government’s central human resources agency, is an independent agency within the Executive Branch. Its director and deputy director are appointed by the president and confirmed by the Senate. OPM can be contacted at: 1900 E St. N.W., Washington, DC 20415; phone (202) 606-1800;
• provides leadership to strengthen the government’s human resources management;
• protects the merit system and veterans’ rights through oversight;
• supports agencies in merit-based candidate assessment and hiring;
• supports agencies in workforce restructuring;
• ensures the suitability of federal employees and provides for personnel investigations;
• promotes executive leadership for a results-oriented government;
• provides government-wide human resources development leadership and policy;
• delivers executive and management development and training;
• manages the retirement and insurance programs;
• administers the system for setting federal compensation and benefits;
• provides tools for employee performance management;
• promotes effective labor-management and employee relations;
• enhances the ability of federal employees to balance work and personal responsibilities;
• administers the government’s leave programs; and
• manages a comprehensive workforce information system.
See the pertinent sections of this Federal Employees Almanac for descriptions of those programs. Points of contact for OPM offices are at http://apps.opm.gov/opmorgchart. The information below describes OPM’s role in adjudicating certain types of disputes between employees and their agencies.
Compensation and Leave Claims
OPM has the authority to settle claims involving federal employees’ compensation and proceeds of canceled checks for veterans’ benefits payable to deceased beneficiaries.
A claim must be submitted by the claimant in writing and must be signed by the claimant or by the claimant’s representative. While no specific form is required, the request should describe the basis for the claim and state the amount sought. The claim should also include: the name, address, telephone number, and fax number (if available) of the claimant; the name, address, telephone number, and fax number (if available) of the agency employee who denied the claim; a copy of the denial of the claim, issued by the employing agency; and any other information that the claimant believes OPM should consider.
At the discretion of the agency, the agency may forward the claim to OPM on the claimant’s behalf. The claimant is responsible for ensuring that OPM receives all the information requested.
OPM may request the agency to provide an administrative report. This report should include: the agency’s factual findings; the agency’s conclusions of law with relevant citations; the agency’s recommendation for disposition of the claim; a complete copy of any regulation, instruction, memorandum, or policy relied upon by the agency in making its determination; a statement that the claimant is or is not a member of a collective bargaining unit, and if so, a statement that the claim is or is not covered by a negotiated grievance procedure that specifically excludes the claim from coverage; and any other information that the agency believes OPM should consider.
Claims should be sent to the Program Manager, Room 6484, Center for Merit System Accountability, Office of Personnel Management, 1900 E St. N.W., Washington, DC 20415, (202) 606-7948.
Position Classification Appeals
OPM decides classification appeals from current federal employees or their designated representatives. Regulations for classification appeals for general schedule employees are in 5 CFR Part 511, subpart F. Regulations for job grading appeals for federal wage system employees are in 5 CFR Part 532, subpart G.
What May Be Appealed—Employees may seek a change in the grade, occupational series, and sometimes the title of a position, and may seek to have a general schedule position changed to the federal wage system or vice-versa.
Employees may not appeal the content or accuracy of an official position description, the accuracy of a classification standard, an agency’s proposed classification decision, the classification of positions to which the employee is not officially assigned, or the classification of positions to which detailed or temporarily promoted for a period of less than two years.
Before submitting an appeal, employees should make sure that the position description identifies the major duties assigned and being performed. OPM usually will not accept an appeal until the agency has fulfilled this responsibility.
Appeal Choices—Employees may appeal the classification of a position to the employing agency at any time.
General schedule (GS) employees may appeal to the employing agency or directly to OPM. However, they may not appeal to the agency and OPM at the same time. GS employees also may make a classification appeal to OPM through the employing agency. The agency must act on the appeal within 60 days or forward it to OPM for action.
OPM recommends that GS employees first seek an appeal decision from the employing agency; if the agency decision is unfavorable, they still can appeal to OPM, but those who appeal first to OPM and receive an unfavorable decision cannot then appeal to the employing agency.
Federal wage system employees must first appeal to the employing agency. If dissatisfied, they may appeal to OPM. The appeal to OPM must be filed within 15 calendar days of the date the employee receives the agency’s decision. OPM may extend the time limit in certain circumstances.
Appealing to the Employing Agency—Appeals of position or job classification to the employing agency generally start with the human resources office, which can explain the agency’s appeal procedures.
Appealing to OPM—Appeals to OPM should contain the following information in writing: name, mailing address, and commercial office telephone number; present classification of your position and the requested classification; name of the department or agency and the office; city and the installation’s mailing address; a copy of the official position description and either a statement affirming that it is accurate or a detailed explanation of the inaccuracies and an explanation of the efforts made to correct the position description; any additional information about the position that will aid in understanding it; and arguments supporting the requested classification by referencing the appropriate classification standards.
Employees may have a representative (designated in writing) help prepare and present an appeal, but the representative cannot be someone with management or classification authority over the position. Appeals must be sent to the OPM office serving the geographic area where the position is located (see the list below).
OPM’s appeal decision is based on information supplied by the employee and the agency. If additional information is needed, it can be obtained through correspondence, telephone call, or on-site visit. OPM does not conduct appeal hearings. OPM bases decisions on the work assigned, the qualifications required to perform that work, and the classification standards. The position will not be compared to other positions. OPM does not consider such factors as employee qualifications that are not required for the work, quality of performance, or volume of work assigned to the position.
OPM will notify both the employee and agency in writing of its decision. The effective date of any change in grade, occupational series, or title will be stated in the decision. OPM’s appeal decision is binding on the agency and on all administrative, certifying, payroll, disbursing, and accounting officials. OPM may raise or lower the grade of a position as the facts warrant. The employing agency still keeps full control over the assignment of duties to a position and who performs those duties.
Reconsideration of OPM Appeal Decision—There is no automatic right to a review of an OPM appeal decision. However, OPM may, at its discretion, reconsider the decision when either the employee or agency submits written evidence or arguments that establish a reasonable doubt as to the technical accuracy of the decision, or presents new, relevant, and substantive information that was not considered in the original decision.
The director of OPM has discretion to reconsider any decision when written evidence or argument is submitted that tends to establish that the decision is erroneous in its interpretation of statute, regulation, or current policy.
The director may also reconsider a decision that involves a new or unreviewed policy consideration, which may have effects beyond the case at hand, or when the case is so exceptional that it warrants the director’s personal attention.
The deadline for submitting a request for reconsideration is 45 calendar days after the date of the decision.
Retroactivity—If your position is upgraded, you generally cannot get back pay for the time your position was misclassified. A classification action may be made effective retroactively (and an employee be given back pay) only if it corrects a classification action that resulted in an actual decrease in pay. In order for the decision to be made retroactive, the employee must appeal the classification to either the agency or OPM, but not both at the same time, within 15 calendar days after the effective date of the reclassification action. Retroactivity may be based only on duties and responsibilities existing at the time of demotion and cannot be based on duties and responsibilities assigned later.
OPM Oversight and Accountability Groups
The following OPM offices accept appeals of classification decisions.
Atlanta Oversight and Accountability Group
75 Spring St. S.W., Suite 1018
Atlanta, GA 30303-3109
Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia (except as noted under the OPM Center for Merit System Accountability)
Chicago Oversight and Accountability Group
230 S. Dearborn St., Suite 3060A
Chicago, IL 60604
Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, West Virginia, Wisconsin
Dallas Oversight and Accountability Group
700 N. Pearl St., Suite 525
Dallas, TX 75201
Arizona, Arkansas, Colorado, Louisiana, Montana, New Mexico, Oklahoma, Texas, Utah, Wyoming
Philadelphia Oversight and Accountability Group
600 Arch Street, Room 3400
Philadelphia, PA 19106-1596
Connecticut, Delaware, Maine, Maryland (except as noted below under the OPM Center for Merit System Accountability), Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Puerto Rico, Virgin Islands
San Francisco Oversight and Accountability Group
90 Seventh St., Suite 13-300
San Francisco, CA 94103-6714
Alaska, California, Hawaii, Idaho, Nevada, Oregon, Washington, Pacific Ocean Area
OPM Center for Merit System Accountability
1900 E St. N.W., Room 6484
Washington, DC 20415-0006
The District of Columbia; in Maryland: the counties of Charles, Montgomery, and Prince George’s; in Virginia: the counties of Arlington, Fairfax, King George, Loudoun, Prince William, and Stafford; the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park; and any overseas area not included above.
Fair Labor Standards Act Claims
Employees may file a Fair Labor Standards Act (FLSA) overtime claim with either the employing agency or with OPM, but cannot pursue the same claim with both the agency and OPM at the same time. OPM encourages employees to get a decision on the claim from the agency before filing at OPM. However, this is not a requirement.
Employees who get an unfavorable decision on an administrative FLSA claim from the agency may still file the claim with OPM. However, the reverse is not true.
An FLSA pay claim is subject to a two-year statute of limitations, except in cases of a willful violation, where the statute of limitations is three years.
Note: If you are included in a union collective bargaining unit (even if not a dues-paying member of the union), check with the union and/or your agency’s labor relations office to see if a contract mandates that you file any FLSA claim through a negotiated grievance procedure. See Negotiated Grievance Procedures in Chapter 8, Section 6.
Filing with the Employing Agency—Employees filing an FLSA claim with an agency should follow that agency’s procedures; the human resources office can provide that information. At the employee’s request, the agency may send the claim to OPM.
Filing at OPM—Claims filed at OPM should be sent to the Program Manager, Room 6484, Center for Merit System Accountability, Office of Personnel Management, 1900 E St. N.W., Washington, DC 20415, (202) 606-7948. FLSA claims may not be filed electronically.
Claims should contain the following information in writing: name; the employing agency during the claim period; the position (job title, pay plan, series, and grade) occupied during the claim period; current mailing address, commercial telephone and fax numbers; and if one is designated, the representative’s mailing address, commercial telephone number and fax numbers; a description of the nature of the claim and the specific issues or incidents giving rise to the claim, including the time period covered; a description of actions taken to resolve the claim within the agency and the results of any actions taken; a copy of any relevant decision or written response by the agency; evidence that supports the claim, including the identity, commercial telephone number, and location of other individuals who may be able to provide information relating to the claim; the remedy being sought; evidence, if available, that the claim period was preserved in accordance with the time limits in 5 CFR 551.702 (the date the agency or OPM received the claim, whichever is earlier, becomes the date the claim period is preserved); a statement that the employee was or was not a member of a collective bargaining unit at any time during the claim period; for those who were members of a bargaining unit, a statement that they were or were not covered by a negotiated grievance procedure at any time during the claim period, and if covered, whether that procedure specifically excluded the claim from the scope of the negotiated grievance procedure; a statement that the employee has or has not filed an action in an appropriate United States court; and any other information the employee believes OPM should consider.
Other Challenges—An OPM decision on a claim is final and is not subject to further administrative review. Nothing limits the employee’s right to bring an action in an appropriate United States court. Filing a claim with a federal agency or with OPM does not stop the statute of limitations from running. OPM will not decide a claim that is in litigation.
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Equal Employment Opportunity Commission
General Responsibilities and Procedures
The U.S. Equal Employment Opportunity Commission (EEOC) was established by Title VII of the Civil Rights Act of 1964, the civil rights statute prohibiting employment discrimination based on race, color, religion, gender, or national origin. EEOC enforces the principal federal statutes prohibiting employment discrimination, and through its Office of Federal Operations (OFO) provides oversight for the federal government’s EEO complaint adjudication and affirmative employment functions. It also is responsible for the federal government’s EEO appellate function. EEOC headquarters can be contacted at 131 M St. N.E., Washington, DC 20507; phone (202) 663-4900, TTY (202) 663-4494, www.eeoc.gov
. To locate the nearest EEOC field office, call (800) 669-4000 (TTY (800) 669-6820) or go to www.eeoc.gov/field
The hallmark legislation providing civil rights protections for federal workers is the Equal Employment Opportunity Act of 1972, which extended to federal workers the provisions of Title VII of the Civil Rights Act of 1964. The 1972 act also required federal agencies to establish affirmative employment programs.
Section 501 of the Rehabilitation Act of 1973 extended employment discrimination protections to federal employees and applicants for employment with disabilities, and required agencies to prepare affirmative action program plans for the hiring, placement, and advancement of such individuals.
The Civil Service Reform Act of 1978 provided that federal personnel management should follow merit principles, including treating employees fairly and equitably and that personnel actions should be free from prohibited practices, including discrimination on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The CSRA also prohibits reprisal against federal employees or applicants for whistleblowing, or for exercising an appeal, complaint, or grievance right.
Additional key laws in the area include the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, and the Genetic Information Nondiscrimination Act of 2008. Also, the Veterans’ Readjustment Assistance Act of 1974 required agencies to have an affirmative action program for the recruitment, employment, and advancement of disabled veterans and requires a separate affirmative action plan for disabled veterans that is to be part of agencies’ efforts under the Rehabilitation Act (see Chapter 8, Section 8).
Executive Order 11478 of 1969 stated the government’s policy to: provide equal opportunity in federal employment for all persons; prohibit discrimination in employment because of race, color, religion, gender, or national origin; and promote the full realization of EEO through a continuing affirmative program in each executive department and agency. Executive Order 13163 of 2000 required agencies to expand outreach efforts, increase efforts to accommodate disabled individuals, and prepare plans to increase the employment opportunities for individuals with disabilities. Executive Order 13164 of 2000 promoted a model federal workplace that provides reasonable accommodation for individuals with disabilities in the application process and for employees to perform the essential functions of a position. Under the order, agencies are required to establish written procedures for processing requests for reasonable accommodation.
The head of each federal executive department and agency is charged by Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the Rehabilitation Act of 1973 as amended, and Executive Order 11478, with establishing and maintaining an affirmative employment program of equal opportunity. EEOC issues management directives designed to guide and instruct agencies on the development of affirmative employment program plans for women, minorities and individuals with disabilities. Under these directives, agencies are to take actions to eliminate barriers to minorities, women, and people with disabilities in their workplaces.
EEOC also presents the federal government’s position on matters affecting workplace discrimination, issues regulations and other guidance on laws under its purview, and advises agencies on their EEO-related policies. EEOC most recently updated its federal employee complaint processing and enforcement policies with revisions to 29 CFR 1614 effective September 24, 2012.
Agency EEO programs must comply with 29 CFR 1614 and EEOC management directives and management bulletins. EEOC reviews agency programs for compliance and if it determines that a program is non-compliant, it will give the agency a reasonable opportunity to cure the defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance. A notice of non-compliance will be issued only when an agency fails to satisfy one of these criteria. EEOC has discretion to determine whether a notice of non-compliance is made public.
EEOC can order agencies to comply with both settlement agreements and final decisions arising from complaints filed by employees, and in the case of a settlement breach it can order that the complaint be reinstated from the point processing ceased.
Agencies can seek approval from the EEOC to conduct pilot projects in which the complaint processing procedures vary from the requirements of Part 1614. Such programs must protect certain rights of all parties. A pilot project typically can run for two years but can be extended an additional year.
Model Workplace Policy—EEO Management Directive 715 (MD-715), issued October 1, 2003, provides policy guidance for establishing a model EEO program. To become a model EEO program under MD-715, agencies must operate their EEO programs efficiently and take proactive steps to prevent unlawful discrimination from occurring. Agencies are required, among other things, to maintain an efficient, fair, and impartial complaint resolution process. EEOC considers the effective use of alternative dispute resolution to be an integral part of a model EEO program. See Section 7 of this chapter.
Management Directive 715 also provides policy guidance and standards for establishing and maintaining an effective affirmative action program for the hiring, placement, and advancement of people with disabilities to become a model employer of people with disabilities. See Special Recruitment, Hiring and Placement Programs in Chapter 8, Section 1.
Title VII of the Civil Rights Act
Title VII of the Civil Rights Act of 1964, applicable to federal employees under the Equal Employment Opportunity Act of 1972, prohibits discrimination in employment, including recruitment, hiring, promotion, wages, benefits, work assignments, performance evaluations, training, transfer, leave, discipline, layoffs, discharge, and any other term, condition, or privilege of employment. Title VII prohibits not only intentional discrimination, but also practices that appear to be neutral, but that limit employment opportunities and are not based on business need.
A 2013 U.S. Supreme Court decision, Vance v. Ball State University (No. 11-556), held that a “team leader” or person with a similar title is not a supervisor for purposes of Title VII—and thus the employer is not liable for prohibited harassment or discrimination by that person—unless that person has authority over important employment-related decisions such as hiring, firing and changes in benefits.
Another 2013 decision, University of Texas Southwestern Medical Center v. Nassar (No. 12-484), held that Title VII retaliation claims must be proved according to principles of “but-for” causation. That requires a showing that an adverse employment action would not have occurred except for retaliation—and not merely that retaliation was a motivating factor in the action.
Race/Color Discrimination—Title VII makes it unlawful to discriminate against any employee or applicant for employment because of his or her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.
Equal employment opportunity cannot be denied because of: marriage to or association with an individual of a different race; membership in or association with ethnic based organizations or groups; or attendance or participation in schools or places of worship generally associated with certain minority groups.
Title VII does not contain a definition of “race.” Race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features. Discrimination on the basis of an immutable characteristic associated with race violates Title VII even though not all members of the race share the same characteristic.
Title VII also prohibits discrimination on the basis of a condition that predominantly affects one race unless the practice is job related and consistent with business necessity.
Color discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.
Racial Harassment—Harassment on the basis of race and/or color also violates Title VII. Ethnic slurs, racial jokes, offensive or derogatory comments, or other verbal or physical conduct based on an individual’s race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual’s work performance.
National Origin Discrimination—Under Title VII it is unlawful to discriminate against any employee or applicant because of the individual’s national origin. No one can be denied equal employment opportunity because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
Equal employment opportunity cannot be denied because of: marriage or association with persons of a national origin group; membership or association with specific ethnic promotion groups; attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or a surname associated with a national origin group.
Religious Discrimination—The Civil Rights Act prohibits agencies from discriminating against individuals in hiring, firing, and other terms and conditions of employment because of their religion. The Act also requires agencies to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the agency. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.
Agencies cannot: schedule examinations or other selection activities that conflict with a current or prospective employee’s religious needs; inquire about an applicant’s future availability at certain times; maintain a restrictive dress code; or refuse to allow observance of a Sabbath or religious holiday, unless the agency can prove that not doing so would cause an undue hardship.
Sex-Based Discrimination—Under the Civil Rights Act, it is illegal to classify a job as “male” or “female” or to maintain separate lines of progression or seniority lists based on sex where this would adversely affect any employee unless sex is a bona fide occupational qualification for that job. This prohibition covers designating certain jobs as “light” or “heavy” since that could be a disguised form of classification by sex.
Nor may job vacancies restrict applications by gender unless there is a bona fide occupational qualifications requirement. Any pre-employment inquiry that expresses any limitation, specification or discrimination as to sex is illegal unless it is based on such an occupational qualifications requirement.
Sex as a bona fide occupational qualification must be justified in terms of the requirements of the particular job and not on the basis of a general principle, such as an assumption that the turnover rate is higher among women than among men, or that men are less capable of handling certain types of work. The preference of co-workers, the employer or clients generally is not to be deemed a bona fide occupational qualifications requirement.
An employer may not discriminate between men and women with regard to benefits.
Sexual Harassment—Sexual harassment is a violation of Sec. 703 of Title VII of the Civil Rights Act. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
In determining whether alleged conduct constitutes sexual harassment, the record as a whole and the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred, will be looked at. The determination of the legality of a particular action will be made from the facts on a case-by-case basis.
An employer is responsible for its acts of harassment and may be liable for those of its agents and supervisory employees. With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.
An employer may also be responsible for acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of such non-employees will be considered.
Equal Pay Act
The 1963 Equal Pay Act prohibits sex discrimination in any form of salaries or wages paid to men and women who are employed in the same establishment and perform jobs requiring equal skill, effort, and responsibility under similar working conditions, except where the payment is made under a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any factor other than sex.
It is unlawful for employers to reduce the wages of either sex to equalize pay between men and women.
A violation may occur where a different wage is paid to a person who worked in the same job before or after an employee of the opposite sex and may take place where a labor union causes the employer to violate the law. Employers found in violation of the act can be compelled to pay back pay, punitive relief and liquidated damages if the violation is shown to be willful.
To establish a prima facie case under this law, a plaintiff must show that the employer pays different wages to employees of the opposite sex even though the employees perform equal work on jobs requiring equal skill, effort and responsibility under similar working conditions. The jobs need not be identical, but they must be substantially equal; job content, not job title, determines whether jobs are considered substantially equal. Once a prima facie case is made, the burden shifts to the defendant to show that the pay differential is justified by one of the statute’s enumerated defenses.
Complaints of discrimination by federal employees under the Equal Pay Act can be filed under 29 CFR 1614, but unlike Title VII, the filing of an administrative complaint is not required before filing a lawsuit.
Further, a remedy for sex bias in wages may be pursued under Title VII.
The Rehabilitation Act of 1973 requires agencies to develop and carry out plans for the hiring, placement, promotion and retention of persons with disabilities (many similar provisions were applied under the 1990 Americans with Disabilities Act; see below). The Rehabilitation Act protects persons who have a physical or mental impairment that substantially limits one or more of such person’s major life activities, who has a record of such an impairment, or is regarded as having such an impairment.
Physical or mental impairment means: certain defined physiological disorders or conditions, cosmetic disfigurement, or anatomical loss or a mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
An agency must make reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified individual with a disability unless the agency can demonstrate that the accommodation would impose an undue hardship on the operations of its program. Reasonable accommodation may include making facilities more accessible, job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
In determining whether an accommodation would impose an undue hardship on the agency, factors to be considered include the overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget, the type of agency operation, including the composition and structure of the agency’s workforce, and the nature and the cost of the accommodation.
Americans with Disabilities Act
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against individuals with disabilities. Section 501 of the Rehabilitation Act of 1973 provides the same protections for federal employees and applicants for federal employment. Under the ADA, the determination of whether an individual has a disability is made on a case-by-case basis.
The EEOC enforces the employment provisions of the ADA. EEOC rules at 29 CFR Part 1614 govern the application of the employment provisions of the ADA to federal government workers in relation to the Rehabilitation Act. The rules became effective on June 20, 2002, and apply to conduct occurring on or after that date. When the ADA was enacted, some of the legal requirements of the ADA differed from the Rehabilitation Act, even though the two laws shared the same purpose: ending employment discrimination based on disability. Congress subsequently amended the Rehabilitation Act, applying the ADA standards to federal employment.
The rules implemented the amendments to section 501 of the Rehabilitation Act and updated the EEOC’s Rehabilitation Act regulation in 29 CFR § 1614.203. They incorporated by reference the EEOC’s ADA regulation, at 29 CFR Part 1630. The regulatory limits on reassignment of federal employees with disabilities as a reasonable accommodation, formerly included in 29 CFR § 1614.203(g), were deleted, and the ADA standard is now applied. The rules amended the federal sector disability regulation, 29 CFR § 1614.203, and set forth the obligation of the federal government to be the model employer of individuals with disabilities.
The application of the ADA’s nondiscrimination standards had no impact on federal affirmative action obligations or programs.
P.L. 110-135 of 2008 amended the ADA to redefine the term “disability,” including what is considered a “major life activity” and what constitutes being regarded as having an impairment. The law states that: the term “disability” should be construed in favor of broad coverage of individuals; an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and the determination of whether an impairment substantially limits a major life activity should be made without regard to the ameliorative effects of mitigating measures. The act also prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless related to the position and consistent with business necessity.
The act further made conforming amendments to the Rehabilitation Act of 1973, extending the revisions to federal employees. General information is at www.eeoc.gov/laws/types/disability.cfm; also see Hiring of the Disabled under Special Recruitment, Hiring, and Placement Programs in Chapter 8, Section 1.
Applicants—The ADA does not require applicants to disclose that they have a disability unless they will need a reasonable accommodation for the application process. If an applicant voluntarily discloses a disability, an employer only may ask whether the person needs a reasonable accommodation, and if so, what type. The employer also must keep any information an applicant discloses about the medical condition confidential.
The ADA limits the medical information that an employer can seek from a job applicant. An employer may not ask questions about an applicant’s medical condition or require an applicant to take a medical examination before it makes a conditional job offer.
Post-Hiring—After making a job offer, an employer may ask questions about an applicant’s health and may require a medical examination as long as it treats all applicants the same. An employer may ask questions or require an employee to have a medical examination only when it has a legitimate reason to believe that the medical condition may be affecting the employee’s ability to do his/her job, or to do it safely.
The ADA requires employers to provide adjustments or modifications to enable people with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). A person may request an accommodation after becoming an employee even if he or she did not ask for one when applying for the job or after receiving the job offer. Accommodations vary depending on the needs of an individual with a disability. If a requested accommodation is too difficult or expensive, an employer still would need to determine whether there is another easier or less costly accommodation that would meet the employee’s needs.
Reassignment to a vacant position for which the employee is qualified may be necessary where an employee no longer can perform the job, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. The new position should be equal in pay and status to the employee’s original position, or as close as possible if no equivalent position is available. The new position does not have to be a promotion, although the employee should have the right to compete for promotions just like other employees.
The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee health program as long as any medical records acquired as part of the program are kept
Epilepsy—Epilepsy may be a disability under the ADA because of limitations that occur as the result of seizures or because of side effects or complications that can result from medications. Under EEOC policy, epilepsy is a disability when it substantially limits one or more of a person’s major life activities. Major life activities are basic activities that an average person can perform with little or no difficulty, such as walking, seeing, hearing, speaking, breathing, performing manual tasks, caring for oneself, learning, and working. Major life activities also include thinking, concentrating, interacting with others, reproduction, and sleeping. Epilepsy also may be a disability because it was substantially limiting at some time in the past or when it does not significantly affect a person’s everyday activities, but the employer treats the individual as if it does.
Cancer—Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s major life activities as described under Epilepsy, above. Even when the cancer itself does not substantially limit any major life activity (such as when it is diagnosed and treated early), it can lead to the occurrence of other impairments that may be disabilities. For example, depression may develop as a result of the cancer, the treatment for it, or both. Where the condition lasts more than several months and substantially limits a major life activity, it is a disability within the meaning of the ADA. Cancer also may be a disability because it was substantially limiting at some time in the past. Cancer is a disability when it does not significantly affect a person’s major life activities, but the employer treats the individual as if it does.
Hearing or Vision Impairment—A hearing or vision impairment is a disability if it substantially limits a major life activity, it was substantially limiting in the past, or an employer regards or treats an individual as having a substantially limiting impairment. Major life activities are those basic activities that an average person can perform with little or no difficulty. Whether impairment actually substantially limits a major life activity depends on how significant the loss is. The assessment of most impairment requires an individualized approach.
For vision impairment, although mitigating measures that the individual uses, such as corrective lenses and compensatory strategies that the body has developed, must be taken into account, they do not automatically exclude someone from coverage under the ADA’s definition of disability. Mitigating measures do not include devices, reasonable accommodations, or compensatory strategies that simply compensate for the fact that an individual is substantially limited in seeing. For example, a totally blind person still meets the ADA’s definition of “disability” even if he or she can move about freely with the use of a white cane or service animal, can work with assistive technology or a reader, and can use hearing to do what others can do using sight.
For hearing impairment, if an individual uses mitigating measures, such as hearing aids, cochlear implants, or other devices that improve hearing, these measures must be considered in determining whether the individual has a disability under the ADA. Even someone who uses a mitigating measure may have a disability if the measure does not correct the condition completely and substantial limitations remain, or if the mitigating measure itself imposes substantial limitations.
Association with Disabled Persons—The ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association. The ADA does not require a family relationship for an individual to be protected by the association provision. The key is whether the employer is motivated by the individual’s relationship or association with a person who has a disability.
Caregiving Responsibilities—Although EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII or the ADA. These include: sex-based disparate treatment of female caregivers, focusing on sex-based stereotypes, stereotyping and other disparate treatment of pregnant workers; sex-based disparate treatment of male caregivers, such as the denial of childcare leave that is available to female workers; disparate treatment of women of color who have caregiving responsibilities; disparate treatment of a worker with caregiving responsibilities for an individual with a disability, such as a child or a parent; and harassment resulting in a hostile work environment for a worker with caregiving responsibilities. Title VII does not prohibit discrimination based solely on parental or other caregiver status, so an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.
Intellectual Disabilities—An individual generally is deemed to have an intellectual disability when: the person’s IQ is below 70-75; the person has significant limitations in basic conceptual, social and practical skills needed for everyday life; and the condition began before age 18. Such individuals may be found to have a disability within the meaning of the first part of the ADA’s definition of disability as substantially limited in brain function and major life activities; this also applies to someone who was misdiagnosed in the past as having such a disability. They may also be covered as someone “regarded as” disabled if an employer takes a prohibited action because of the condition or because the employer believes the person has the condition. (Note: An intellectual disability may qualify as a “targeted” disability under the Schedule A federal hiring policy; see Hiring of the Disabled under Special Recruitment, Hiring and Placement Programs in Chapter 8, Section 1.)
Diabetes—Persons with diabetes may be found to have a disability within the meaning of the first part of the ADA’s definition of disability as substantially limited in the major life activity of endocrine function; this also applies to someone with a past history of diabetes. They may also be covered as someone “regarded as” disabled if an employer takes a prohibited action because of the condition or because the employer believes the person has the condition.
Age Discrimination in Employment Act
Pursuant to 1974 and 1978 amendments to the Age Discrimination in Employment Act of 1967, discrimination in federal employment because of age is prohibited and agencies are required to assure that all personnel actions are free from age discrimination (discrimination against persons age 40 or older). The ADEA provides the right to go to court but is not specific as to time limits or conditions for filing civil actions after a complaint has been filed under administrative procedures. In addition, the ADEA provides direct access to the courts after a 30-day notice of intent to sue is filed with the EEOC, if the notice is filed within 180 days of the discriminatory act. All regulations governing the complaint process are found in 29 CFR 1614.
In a 2008 decision, Gomez-Perez v. Potter, 200 U.S. 321, the U.S. Supreme Court held that federal employees have the right to pursue in federal court as well as before the EEOC allegations that they were retaliated against for filing an age discrimination complaint.
The ‘No Fear’ Act
The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No Fear” Act), P.L. 107-174, set out requirements for the written notification of federal employees and applicants of their rights and remedies under anti-discrimination and whistleblower protection laws, including by posting that information on the Internet and requirements for employee training regarding such rights and remedies.
It further required agencies to produce annual reports that include: the number and status of cases arising under such laws and the amount of money involved; the number of employees disciplined for discrimination, retaliation, or harassment; data relating to complaints filed; agency policy relating to disciplinary actions against employees who discriminated or committed another prohibited personnel practice; and an analysis including an examination of trends, causes, practical knowledge gained through experience, and actions planned or taken to improve complaint or civil rights programs of the agency.
The law also:
• required agencies to post on their Web sites specified summary statistical data relating to equal employment opportunity complaints filed with the agency by employees or applicants, and required the EEOC to post on its site summary statistical data relating to hearings requested on such complaints and appeals filed with it from final agency actions;
• expressed the sense of Congress that federal agencies should not retaliate for court judgments or settlements relating to discrimination and whistleblower laws by targeting the claimant or other employees with reductions in compensation, benefits, or work and that they should ensure that managers have adequate training in the management of a diverse workforce and in dispute resolution; and
• required the amount of any claim, final judgment, award, or compromise settlement paid to any current or former federal employee or applicant in connection with specified anti-discrimination and whistleblower protection complaints to be reimbursed to the Treasury out of the operating expenses of the agency to which the discriminatory conduct is attributable. Agencies are expected to reimburse the general fund of the Treasury within a reasonable time, should not use a reduction in force or furloughs as means of funding a reimbursement, but may extend reimbursement over several years to avoid reductions in force, furloughs, reductions in compensation or benefits, or an adverse effect on the mission of the agency.
Ledbetter Fair Pay Act
Public Law 111-2, the Lilly Ledbetter Fair Pay Act of 2009, superseded the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). That decision had required a compensation discrimination charge to be filed within 180 days of a discriminatory pay-setting decision (or 300 days in jurisdictions that have a local or state law prohibiting the same form of compensation discrimination).
The Act restored the previous position of the EEOC that each paycheck that delivers discriminatory compensation is a wrong actionable under the federal EEO statutes, regardless of when the discrimination began. Under the Act, an individual subjected to compensation discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990 may file a charge within 180 (or 300, as described above) days of any of the following:
• when a discriminatory compensation decision or other discriminatory practice affecting compensation is adopted;
• when the individual becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
• when the individual’s compensation is affected by the application of a discriminatory compensation decision or other discriminatory practice, including each time the individual receives compensation that is based in whole or part on such compensation decision or other practice.
The Act had a retroactive effective date of May 28, 2007, and applies to all claims of discriminatory compensation pending on or after that date.
Other Forms of Discrimination
—The Genetic Information Nondiscrimination Act of 2008 prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and limits the disclosure of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members.
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. It is also illegal to harass a person because of his or her genetic information, to retaliate for filing a charge of discrimination related to genetic information, or to disclose genetic information about applicants or employees.
Parental Status—Executive Order 13152 of 2000 states that it is the policy of the government to prohibit discrimination in employment based on an individual’s status as a parent. This applies to all policies and practices in the employment, development, advancement, and treatment of employees, to the extent permitted by law.
An individual covered as a parent is someone who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is: a biological parent; an adoptive parent; a foster parent; a stepparent; a custodian of a legal ward; in loco parentis (in the place of a parent) over such an individual; or actively seeking legal custody or adoption of such an individual.
Marital Status and Political Affiliation—The Civil Service Reform Act of 1978 prohibits employment discrimination in the federal government based on marital status or political affiliation.
Sexual Orientation—The CSRA prohibits discriminating against an applicant or employee on the basis of conduct that does not adversely affect the performance of the applicant or employee. The Office of Personnel Management has interpreted the prohibition of discrimination based on “conduct” to include discrimination based on sexual orientation.
Further, Executive Order 13807 of 1998 states that it is the policy of the government to prohibit discrimination in employment because of sexual orientation. This applies to all policies and practices in the employment, development, advancement, and treatment of employees, to the extent permitted by law. Executive Order 13807 did not create any new rights.
In addition, a Presidential memo of June 17, 2009 required all executive departments and agencies to comply with civil service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), that make it unlawful to discriminate against federal employees or applicants for federal employment on the basis of factors not related to job performance.
Complaint Routes—For complaints of discrimination based on sexual orientation or status as a parent, Executive Order 13087, Executive Order 13152 and the Civil Service Reform Act provide protection. The Cabinet level agencies also have issued policy statements prohibiting discrimination based on sexual orientation. In addition, some agencies have developed parallel EEO complaint procedures allowing employees to file EEO complaints based on sexual orientation within their agencies. Employees should check with their agencies to see if processes exist to handle these complaints. In addition, employees should check their respective collective bargaining agreements and their agencies’ negotiated grievance procedures to determine whether grievance procedures can be invoked to address these issues.
Employees also may contact the Office of Special Counsel (see Section 4 of this chapter) and/or the MSPB (see Section 3 of this chapter) to determine whether they have a prohibited personnel practice complaint under 5 U.S.C. 2302(b)(10).
Complaint and Appeal Procedures
If you, as a federal employee, applicant, or former employee believe you have been subjected to discrimination because of race, color, religion, sex, national origin, disability, age or reprisal you can file an EEO complaint. There are several steps or stages of the EEO complaint and appeals process, including pre-complaint processing, the formal complaint stage, and the hearing, decision, and appeals process. These various stages of the process are described below (in practice, the time limits commonly are exceeded; meanwhile, alternative dispute resolution procedures may be available at both the pre-complaint and post-filing stages as described in Section 7 in this chapter).
You are encouraged to submit a digital filing. Agencies must submit appeals and complaint files to the EEOC in a digital format unless they can show good cause for not doing so.
An agency may summarily dismiss a complaint alleging that a proposal or preliminary step to taking a personnel action is discriminatory, unless you allege that the agency is acting: in retaliation because you had engaged in prior EEO activity or because you had opposed a practice that you believed violated one of the federal EEO laws; or to dissuade you, or a reasonable person in your circumstances, from engaging in protected EEO activity.
• EEO Counseling—As a discrimination complainant, you must, as a first step, discuss the problem with an equal employment opportunity counselor—an employee of your agency—within 45 days of the alleged discriminatory act or the effective date of a personnel action. Counseling must be completed within 30 days of the date you contact the agency’s EEO office with your counseling request. If the matter is not resolved, the EEO counselor will notify you in writing of your right to file a formal discrimination complaint. The EEO counselor’s responsibilities include: providing complainants with written notice of their EEO rights and obligations under federal law, including their general right (most non-postal workers) to choose between the EEOC process and the contractual grievance procedure, if available; help complainants identify and determine the basis and issues of their claim (while avoiding “fragmentation” of the claim—see below); conducting a limited inquiry to uncover information needed, for example, to help resolve any jurisdictional questions; facilitating efforts to resolve the problem by listening to and understanding the viewpoints of both parties; holding a final interview with the complainant within 30 days, if an informal resolution is not possible and the aggrieved person has not consented to an extension (not to exceed 60 days); and notifying the employee in writing of the individual’s right to file a formal complaint. At the initial counseling session or within a “reasonable time,” the EEO counselor should inform employees of their right to have their charges handled through the agency’s traditional counseling process or through the alternative dispute resolution procedure, if the agency has opted to offer ADR.
• Formal Complaint—You must file a formal complaint with the agency that allegedly discriminated against you within 15 days of receiving the notice of your rights from your EEO counselor. The agency must acknowledge receipt of this formal complaint. In addition to this acknowledgment letter, the agency also should send the complainant an “acceptance letter,” stating the claims asserted by the worker that will be investigated by the agency. If the agency dismisses all of the complaint, you will be notified in writing of your right to appeal to EEOC’s Office of Federal Operations within 30 days of receipt of the agency’s dismissal. (In such situations, the EEOC may determine that the dismissal was improper, reverse the action, and remand the matter back to the agency for completion of the investigation.)
If the agency does not dismiss the complaint, it must conduct and complete an impartial and appropriate investigation within 180 days of the filing of the complaint, unless the parties agree in writing to extend the period. If an agency does not complete its investigation within the required period, it must issue a written notice informing you of its failure and must provide an estimated date to complete its investigation. The notice also must explain that if you do not want to wait until the agency completes the investigation, you may instead request a hearing or file a civil action in the appropriate federal district court. If you request a final decision without a hearing, the agency must take final action by issuing a decision within 60 days. (Complainants who request an agency final decision without a hearing have the right to appeal the agency’s decision, including a partial dismissal, to EEOC.)
• EEOC Hearing—Following completion of the investigation, you have the right to request a hearing by an EEOC administrative judge. Even if the agency has not completed its investigation, you have the right to request a hearing any time after 180 days from the date the complaint was filed. If a hearing is requested, an EEOC administrative judge must issue a decision within 180 days from the day the complaint file was received from the agency. Agencies cannot reverse or overturn an EEOC AJ’s decision. After the AJ issues a decision, the agency must issue a final order within 40 days, indicating whether it will “fully implement” the AJ’s ruling or whether it will appeal that decision to EEOC. (“Fully implement” means that the agency agrees to adopt the AJ’s decision without any modification; unless they appeal, agencies must provide the ordered relief within 120 days). If the agency does not fully implement the AJ’s decision, it must file an appeal to EEOC and provide the complainant with notification of its decision and action. Complainants have 30 days from receiving notice of the agency’s implementation decision to file an appeal with EEOC.
• Complainant’s Appeal Rights—If you’ve requested a final agency decision without a hearing and are not satisfied with the agency’s final action on your complaint, you may appeal either to the EEOC within 30 calendar days of your receipt of the final action or file a civil action in a U.S. district court within 90 calendar days of your receipt of the final action. If you appeal to the EEOC and are dissatisfied with the decision on appeal, you may file a civil action within 90 days of your receipt of EEOC’s final decision. You may also file a civil action after 180 calendar days from the date on which the complaint was filed if the agency has not taken final action on your complaint. You may also file suit after 180 days from appeal to the EEOC when no decision has been made. You have the right to be represented at any stage of the process, including the counseling stage, by your representative.
Prior to filing a civil action in federal court under Title VII of the Civil Rights Act of 1964 or the Rehabilitation Act of 1973, as a federal sector complainant, you must first exhaust the administrative process at 29 CFR 1614 as described above. “Exhaustion” for the purposes of filing a civil action may occur at different stages of the process. The regulations provide that civil actions may be filed in an appropriate federal court: (1) within 90 days of receipt of the final action where no administrative appeal has been filed; (2) after 180 days from the date of filing a complaint if an administrative appeal has not been filed and final action has not been taken; (3) within 90 days of receipt of the EEOC’s final decision on an appeal; or (4) after 180 days from the filing of an appeal with the EEOC if there has been no final decision by the EEOC.
Under the Age Discrimination in Employment Act (ADEA), you may proceed directly to federal court after giving the EEOC notice of your intent to sue under 29 CFR 1614.201. If you initiate the administrative process in 29 CFR 1614, you may also filed a civil action within the time frames noted above, under 29 CFR 1614.408.
Under the Equal Pay Act, you may file a civil action within two years (three years for willful violations), regardless of whether you have pursued an administrative complaint under 29 CFR 1614.409.
Filing a civil action terminates the EEOC’s processing of an appeal under 29 CFR 1614.410.
If you are covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a grievance procedure, you may bring such an allegation either under under that procedure or the procedures of 29 CFR 1614, but not both. An election to proceed under Part 1614 is made by the filing of a complaint, and an election to proceed under the negotiated grievance procedures is made by filing a grievance. Participation in the pre-complaint procedures of Part 1614 is not an election of the Part 1614 procedures. The election requirement does not apply to employees of agencies not covered by 5 U.S.C. Section 7121(d), notably employees of the U.S. Postal Service.
Some employment actions that may be the subject of a discrimination complaint under 29 CFR 1614 may also be appealed to the Merit Systems Protection Board (MSPB). In such cases, you may elect to proceed with a complaint as a “mixed case complaint” under Part 1614 or a “mixed case appeal” before the MSPB. Whichever is filed first is considered an election to proceed in that forum. (Also see Section 3 of this chapter.)
Mixed case complaints at EEOC are processed similarly to other complaints of discrimination, with the following notable exceptions: (1) the agency has only 120 days from the date of the filing of the mixed case complaint to issue a final decision, and you may appeal the matter to the MSPB or file a civil action in federal court any time thereafter; (2) you must appeal the agency’s decision to the MSPB , not the EEOC, within 30 days of receipt of the agency’s decision; (3) at the completion of the investigation, you do not have the right to request a hearing before an EEOC administrative judge, and the agency must issue a decision within 45 days.
If you have filed either a mixed case complaint or a mixed case appeal and have received a final decision from the MSPB, you may petition the EEOC to review the MSPB’s final decision.
In contrast to non-mixed matters, if you wish to file a civil action in mixed-case matters, you must file within 30 days (not 90 days) of receipt of (1) the agency’s final decision; (2) the MSPB’s final decision; or (3) the EEOC’s decision on a petition to review. Alternatively, a civil action may be filed after 120 days from the date of filing the mixed case complaint with the agency or the mixed case appeal with the MSPB if there has been no final decision on the complaint or appeal, or 180 days after filing a petition to review with the EEOC if there has been no decision by the EEOC on the petition.
The EEOC rules contain a number of provisions designed to discourage or prevent fragmentation, including procedures making it easier to amend complaints to include discriminatory actions related, but subsequent, to an individual’s existing claim. Similarly, consolidation rules permit independent claims brought by the same complaining party to be joined together for processing. The rules also include procedures related to:
Partial Dismissals—Appeal rights from partial dismissals are not allowed. Instead, the case will continue to be processed and appeals are preserved until the rest of the case is ready for appeal.
Spin-Off Complaints—The rules provide for the dismissal of spin-off complaints (i.e., complaints about the processing of an existing complaint), and specify that complaints about existing complaints should be brought up as part of the original complaint.
Class complaints of discrimination under 29 CFR 1614.204 are processed differently than individual complaints. The employee or applicant who wishes to file a class complaint must first seek counseling and be counseled, just like an individual complaint. However, once counseling is completed the class complaint is not investigated by the respondent agency. Rather, the complaint is forwarded to the nearest EEOC field or district office, where an EEOC administrative judge is appointed to make decision as to whether to accept or dismiss the class complaint. The AJ examines the class to determine whether it meets the class certification requirements of numerosity, commonality, typicality and adequacy of representation. The AJ may issue a decision dismissing the class because it fails to meet any of these requirements, as well as for any of the reasons for dismissal of individual complaints.
A class complaint may begin as an individual complaint of discrimination. A complainant may move for class certification at any reasonable point in the process when it becomes apparent that there are wider implications to the claims raised in an individual complaint.
The AJ transmits his or her decision to accept or dismiss a class complaint to the class agent and the agency. The agency must then take final action by issuing a final order within 40 days of receipt of the AJ's decision. The final order must notify the agent whether or not the agency will implement the decision of the AJ. If the agency's final order does not implement the AJ's decision, the agency must simultaneously appeal the AJ's decision to EEOC's Office of Federal Operations. A dismissal of a class complaint must inform the class agent either that the complaint is being filed on that date as an individual complaint and processed accordingly, or that the complaint is also dismissed as an individual complaint. In addition, a dismissal must inform the class agent of the right to appeal to EEOC's OFO or to file a civil action in federal court.
After an EEOC administrative judge decides whether to accept or dismiss a class complaint, either the agency or the class agent can appeal that decision. EEOC’s standard for processing an appeal of the acceptance or dismissal of a class complaint is 90 days (prior to September 24, 2012, the standard was 180 days).
When a class complaint is accepted, the agency must use reasonable means to notify the class members and provide a description of the issues accepted, an explanation of the binding nature of the final decision or resolution on the class members, and the name, address and telephone number of the class representative. In lieu of an investigation by the respondent agency, an EEOC AJ develops the record through discovery and a hearing.
An AJ’s decision on the merits of a class complaint is a final decision, which the agency can fully implement or appeal in its final action (under policy prior to September 24, 2012, an AJ issued only recommended, not final, findings and conclusions on the merits of a class complaint, which an agency could accept, reject, or modify in its final action). If the agency decides not to fully implement the administrative judge’s decision, it need only appeal the portion of the decision that it wants to contest. For example, if an administrative judge finds discrimination and awards reinstatement and back pay, and if the agency disagrees only with the back pay award, the agency’s appeal need only challenge that award.
When discrimination is found in the final decision and a class member believes that he or she is entitled to relief, the class member may file a written claim with the agency within 30 days of receipt of notification by the agency of its final decision. The EEOC AJ retains jurisdiction over the complaint in order to resolve disputed claims by class members. The claim for relief must contain a specific showing that the claimant is a class member entitled to relief. When a finding of discrimination against a class has been made, there is a presumption of discrimination as to each member of the class. The agency must show by clear and convincing evidence that any class member is not entitled to relief. The agency must issue a final decision on each individual claim for relief within 90 days of filing. Such decision may be appealed to EEOC's OFO, or a civil action may be filed in federal court.
A class complaint may be resolved at any time by agreement between the agency and the class agent. Notice of such resolution must be provided to all class members, and reviewed and approved by an EEOC AJ. If the AJ finds that the proposed resolution is not fair to the class as a whole, the AJ will issue a decision vacating the agreement, and may replace the class agent with some other eligible class member to further process the class complaint. That decision may be appealed to EEOC. If the AJ finds that the resolution is fair to the class as a whole, the resolution is binding on all class members.
Attorney’s Fee Awards
Under EEOC’s rules, complainants who successfully pursue discrimination charges against a federal agency may be entitled to an award of attorney’s fees. The Commission’s administrative judges generally are responsible for determining the amount of fees to be awarded to a prevailing complainant.
An attorney’s fee award also may be available for work performed during the pre-complaint process. Fees will be available for legal work done before a complaint is filed, according to the EEOC rules, in the “limited circumstances” where a complaining party prevails in a hearing, the agency chooses not to fully implement the administrative judge’s decision, and the Commission subsequently finds in favor of the complaining party. Additionally, agencies and complaining parties may include attorney’s fees for pre-complaint work in a settlement agreement.
However, complainants risk losing any possible entitlement to attorney’s fee payments in situations where they refuse to accept an agency’s “offer of resolution.” Under this procedure, which is designed to encourage settlements of EEO complaints, an agency may decide to make an offer of resolution to a complaining party. If the complainant does not accept the offer and ultimately obtains no more relief than what was offered, no attorney’s fees or costs will be payable for legal work done after the offer was rejected.
Sec. 102 of the Civil Rights Act of 1991 permits a complaining party pursuing a claim under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, or the Rehabilitation Act of 1973, to recover compensatory and punitive damages in the case of intentional discrimination. However, punitive damages are not available against governmental entities. In a 1999 decision (West v. Gibson, 119 S.Ct. 1906, 1999), the U.S. Supreme Court upheld EEOC’s right to award compensatory damages to successful EEO complainants.
The law places limits on the size of such damages awards, which can range up to $300,000. In court actions, any party may demand a jury trial when a complainant is seeking either compensatory or punitive damages.
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Merit Systems Protection Board
The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive Branch whose primary mission is to ensure that federal employees are protected against abuses by agency management, that agencies make employment decisions in accordance with the merit system principles, and that federal merit systems are kept free of prohibited personnel practices. MSPB also produces reports on various personnel issues. MSPB can be contacted at: 1615 M St. N.W., Washington, DC 20419; phone (202) 653-7200 or (800) 209-8960, fax (202) 653-7130, TDD (800) 877-8339, www.mspb.gov
MSPB adjudicates appeals from federal personnel actions worldwide. Additionally, under the Hatch Act, it exercises jurisdiction over state and local government employees in federally funded positions.
The Board consists of a chairman, a vice-chairman and a member, with no more than two of its three members from the same political party. Board members are appointed by the President, confirmed by the Senate, and serve overlapping, nonrenewable, seven-year terms.
The Board accomplishes its mission by:
• hearing and deciding employee appeals from certain agency personnel actions, including individual right of action appeals brought by whistleblowers who have exhausted the procedures of the Office of Special Counsel;
• hearing and deciding cases brought by the Special Counsel involving alleged abuses of the merit systems or Hatch Act violations, certain proposed actions against administrative law judges, and requests to review a regulation of OPM or implementation of an OPM regulation by an agency;
• conducting studies of the civil service and other merit systems in the Executive Branch to determine whether they are free of prohibited personnel practices; and
• providing oversight of the significant actions and regulations of OPM to determine whether they are in accord with the merit system principles.
Merit System Principles
Civil service law (5 U.S.C. 2301(b)) requires that federal personnel management be implemented consistent with the following merit system principles:
• Recruitment should be from qualified individuals from appropriate sources to achieve a workforce from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
• All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
• Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
• All employees should maintain high standards of integrity, conduct, and concern for the public interest.
• The federal workforce should be used efficiently and effectively.
• Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
• Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
• Employees should be protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
• Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
It is a prohibited personnel practice to take or fail to take any personnel action if the taking of or failure to take the action violates any law, rule or regulation implementing or directly concerning these merit system principles.
MSPB conducts special studies of the civil service and other federal merit systems to determine whether these statutory mandates are being met and to report to the Congress and the President on whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.
Prohibited Personnel Practices
The civil service laws forbid personnel actions based on “prohibited personnel practices.” Prohibited personnel practices are those that, if committed, undermine the federal merit system. The prohibited personnel practices are in Section 2302(b) of Title 5 of the United States Code. A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, Section 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:
1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing—i.e., take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for disclosing to the Special Counsel, or to an Inspector General or comparable agency official (or others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs), information that the employee or applicant reasonably believes evidences a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety);
9. take, fail to take, or threaten to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
10. discriminate based on personal conduct that is not adverse to the on-the-job performance of an employee, applicant, or others;
11. take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; or
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.
Types of Appealable Actions
Under 5 U.S.C. 7512, most federal employees are entitled to appeal to the MSPB certain personnel actions taken by agencies, including adverse actions (removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or fewer), performance-based removals or reductions in grade, denials of within-grade increases, certain reduction-in-force actions, denials of restoration to duty or re-employment rights, removals from the SES for failure to be recertified, and OPM determinations in employment suitability and retirement matters. Special rules apply to whistleblowers, as described below.
A complete list of the matters over which the Board has jurisdiction is at 5 CFR 1201.3.
Whistleblower law protects most Executive Branch employees from workplace reprisal for making certain disclosures of wrongdoing. Whistleblower retaliation can be found if an agency takes or fails to take a covered personnel action against a covered person because of a protected disclosure, or if it even threatens to take or fail to take such an action.
Generally, the protections may be asserted in: (1) employee appeals to MSPB as part of an agency’s adverse action against an employee, known as “Chapter 77” appeals; (2) actions instituted by the Office of Special Counsel; (3) an “individual right of action” case before the MSPB, which is allowed if the appellant first filed a complaint with the Office of Special Counsel and the Special Counsel did not seek corrective action from the Board (see Prohibited Personnel Practices, below); or (4) grievances brought by the employee under negotiated grievance procedures (see Appeal Procedures, below).
The Whistleblower Protection Enhancement Act of 2012 made numerous changes in the law, in part to overturn certain precedents of MSPB and court decisions since the law had been last reformed in 1989. In addition to provisions described below, the 2012 law:
• specified that in an MSPB appeal the employee must be allowed to first present his or her case before the agency presents its case;
• provided for compensatory damages for whistleblowers who prevail after an administrative hearing, including retaliatory investigations;
• created a two-year pilot program of allowing appeals of MSPB final decisions to a regional circuit court rather than only to the U.S. Court of Appeals for the Federal Circuit;
• provided OSC with authority to file a “friend of the court” brief in support of an employee appealing an MSPB ruling in court;
• made it easier for OSC to discipline those responsible for illegal retaliation by modifying burdens of proof for reprisal and ending OSC’s prior liability for attorney fees of government managers if OSC did not prevail in a disciplinary action; and
• contained several notification, study and reporting requirements.
The law also extended individual right of action appeals to persons alleging that they suffered retaliation for bringing a whistleblower reprisal claim, those who assisted another person in that person’s appeal, complaint or grievance, those who cooperate with an inspector general or OSC investigation, and those who refuse to obey an order that would require them to violate law.
Covered Personnel Actions—Covered personnel actions include such actions as appointments, promotions, discipline, details, transfers, reassignments, reinstatement, restoration, re-employment, performance evaluations, decisions concerning pay, benefits and awards, decisions concerning education or training that may reasonably be expected to lead to a personnel action, decisions to order psychiatric testing or examination, and any other significant change in duties, responsibilities, or working conditions. (Note: The decision by an agency to revoke a security clearance—even when that clearance is a required condition of employment—is not subject to review by the Special Counsel or adjudication by MSPB. See below for protections under a 2012 White House directive.)
Protected Disclosures—A protected disclosure is one that shows:
• a violation of law, rule, or regulation;
• gross mismanagement;
• a gross waste of funds;
• an abuse of authority; or
• a substantial and specific danger to public health and safety.
A disclosure of any violation of law, rule, or regulation is protected, even if the violation is minor or technical. The violation could be of a federal or state statute, a government-wide regulation or an internal agency regulation or rule.
The gross mismanagement and gross waste of funds categories require a showing of significant wrongdoing. For example, a disclosure of a management decision that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission is protected, but a disclosure of a decision that is merely debatable is not protected.
A gross waste of funds occurs when the amount spent is significantly out of proportion to the value of the benefit received.
An abuse of authority is an exercise of power that adversely affects someone’s rights or results in an advantage or personal gain to the wrongdoer or to people he favors.
A “substantial and specific danger to public health and safety” cannot be remote or speculative. The key is not how many people might be affected by the risk, but how big the risk is, how serious the harm is, and how directly the wrongdoing causes the harm.
The Whistleblower Protection Enhancement Act of 2012 changed several policies that had restricted the conditions under which such disclosure would be protected. The law clarified that it is an act of whistleblowing make a disclosure:
• even though another person previously has made a similar disclosure;
• as part of regular job duties;
• to a supervisor who participated in the alleged wrongdoing;
• regarding protection of critical infrastructure;
• alleging censorship of scientific or technical information; or
• that challenges the consequences of an agency policy decision (although disagreements over the validity of policy decisions are not protected).
Note: In a 2013 decision, Day v. Dept. of Homeland Security (2013 MSBP 49), MSPB ruled that those standards apply to cases that were pending when the law took effect on December 27, 2012 as well as to cases filed afterward.
Persons Covered—Generally, current employees, former employees, or applicants for employment to positions in the Executive Branch in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees.
Positions that are excepted from the competitive service because of their “confidential, policy-determining, policy-making, or policy-advocating character,” and any positions exempted by the president based on a determination that they are necessary and warranted by conditions of good administration, are not protected by the whistleblower statute. Moreover, the statute does not apply to workers employed by the Postal Service, Postal Regulatory Commission, Government Accountability Office, or any Executive Branch entity that primarily conducts foreign intelligence or counter-intelligence activities. Also excluded are “Title 42” employees, most of whom are research and medical experts hired under special appointing authority.
Standard protections were extended to Transportation Security Administration screeners and associated employees by the Whistleblower Protection Enhancement Act of 2012. Previously, although those employees were not included in the law, they had certain rights under agreements among TSA, OSC and MSPB.
The Intelligence Community Whistleblower Protection Act of 1998 protects the right of employees in intelligence agencies to provide certain information to the intelligence committees of Congress in the case of “serious or flagrant” problems, although it provides no legal remedies (such as MSPB appeal rights) for retaliation. CIA employees also may make such reports through the agency’s inspector general, and an internal agency appeals mechanism applies to employees of the FBI who allege whistleblower retaliation. See below for protections available under a 2012 presidential directive.
Standards of Proof—The Whistleblower Protection Enhancement Act of 2012 reduced the standard of proof for judging whether an employee had a “reasonable belief” that the disclosed information qualifies for protection. The prior standard required that employees present undeniable, uncontestable or incontrovertible proof that the actions of the government evidence a violation, mismanagement, waste, abuse or danger under the law. The new standard is whether a disinterested observer with knowledge of the essential facts available to the employee could reasonably reach such a conclusion.
For an agency decision to be held retaliatory, the whistleblowing must be a contributing factor in the agency’s decision. That can be proven by: showing that the deciding official knew of the disclosure and that the adverse action was initiated within a reasonable time of that disclosure (with no evidence of a retaliatory motive necessary), or through the combination of other evidence such as the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether those individuals had a desire or motive to retaliate.
However, retaliation won’t be found if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of the whistleblowing. This is determined by: whether the agency had legitimate reasons for the personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision to take the personnel action; and any evidence that the agency takes similar personnel actions against employees who are not whistleblowers but who are otherwise similarly situated.
E-mail Monitoring—A June 20, 2012 government-wide memo from the Office of Special Counsel said that agencies should make sure that their policies regarding monitoring of employee e-mail and other communications do not interfere with or dissuade employees from whistleblowing. Deliberate targeting by an agency of an employee’s submission or draft submissions to the OSC or an inspector general, or deliberate monitoring of communications between the employee and the OSC or IG in response to such a submission by the employee, could lead to a determination that the agency has retaliated against the employee for making a protected disclosure. The same applies to an employing agency’s deliberate targeting of an employee’s e-mails or computer files for monitoring simply because the employee made a protected disclosure.
Intelligence Community—An October 10, 2012 White House order to agencies (Presidential Policy Directive 19) prohibited whistleblower retaliation against employees of the intelligence community by taking or failing to take, or threatening to take or fail to take, a range of personnel actions including decisions affecting eligibility for access to classified information.
The memo ordered agencies to provide a process for employees to seek review by the agency’s inspector general of personnel actions they allege to be retaliatory, using much the same policies and procedures used to by MSPB to adjudicate whistleblower complaints by federal employees in general. The IG may recommend specific corrective action to return the employee, as nearly as practical and reasonable, to the position the employee would have held had the reprisal not occurred. This includes reinstatement, reassignment, back pay, legal fees, compensatory damages and other remedies.
An agency head must “carefully consider” the IG’s findings and recommendations but compliance with those recommendations is not mandatory.
Employees dissatisfied with the outcome of that process may request review by a three-member “external review panel” which can be convened at the discretion of the IG of the intelligence community on behalf of the Director of National Intelligence. Such a panel would consist of IG representatives from certain specified agencies, not to include the employee’s own agency. It would review the claim and within 180 days decide whether to recommend that the agency take corrective action on behalf of the employee.
An agency head similarly must consider any recommendations of the panel but is not required to comply.
Agencies must cooperate with both levels of review, including providing information and assistance requested by the reviewing officials, to the extent permitted by law. Classified information and intelligence sources and methods must be protected, and annual reports on the findings and outcome of such reviews must be submitted to the Director of National Intelligence and the relevant congressional committees.
For the Board to have jurisdiction over an appeal of a personnel action, it must possess jurisdiction over both the action and the individual filing the appeal. The appellant must meet the statutory definition of “employee” within the meaning of 5 U.S.C. 7511(a)(1), and second, the action must be an appealable one, as described above under Types of Appealable Actions and Whistleblowing.
An individual who meets the definition of “employee” is entitled to certain procedural and appeal rights when he or she is the subject of an adverse action (e.g., removal, certain types of suspension, reduction in grade, reduction in pay, and furlough of 30 days or less). These rights include: (1) at least 30 days’ advance written notice of the reason for a proposed adverse action; (2) a reasonable time, but not less than seven days, to answer orally and in writing; (3) the right to be represented by an attorney or other representative; (4) a written decision and the specific reasons for the decision at the earliest practicable date; and (5) a right to appeal to MSPB. Individuals who do not meet this definition are not afforded all of these rights.
The appellant has the burden of proving by a preponderance of evidence that the Board has jurisdiction over his or her appeal (see 5 CFR 1201.56(a)(2)(I)).
The employees and others (e.g., applicants for employment, annuitants in retirement cases) who may appeal specific actions to the Board vary in accordance with the law and regulations governing the specific action. For some actions, classes of employees, such as political appointees and employees of specific agencies, e.g., the intelligence and security agencies, are excluded.
Since enactment of the Civil Service Reform Act of 1978, employees in the competitive service and preference-eligible employees in the excepted service have had the right to appeal adverse actions to the Board. An “employee” under the law is someone who is appointed in the competitive service and has completed a probationary or trial period, or who is preference-eligible (that is, has veterans preference rights) and has completed one year of current and continuous service. In 1987, non-preference eligible supervisors and managers in the Postal Service gained Board appeal rights for adverse actions. Under the Civil Service Due Process Amendments, which became effective in August 1990, non-preference eligible excepted service employees who have completed two years of current and continuous service gained the right to appeal both adverse actions and performance-based actions to the Board.
Under 5 U.S.C. 7511(a)(1)(B), an employee with veterans’ preference (see 5 U.S.C. 2108) must complete at least one year of current continuous service in the same or similar position in an executive agency to be eligible for appeal rights to the Board. A two-year period is required for non-veteran preference employees under 5 U.S.C. 7511(a)(1)(C). The phrase one or two years of “current continuous service” under 5 U.S.C. 7511(a)(1) pertains to the period of employment immediately preceding the adverse action. “Current” service is the period of employment during which the adverse action took place, and it is only this service, not any earlier service, that the employee is required to establish as “continuous.” Current service is “continuous” within the meaning of 7511(a)(1) if there is no break in federal civilian employment (see 5 CFR 752.402(b)). “Similar positions” under 5 U.S.C. 7511(a)(1) are positions in the same line of work where duties performed are similar in nature and character and require substantially the same or similar qualifications (see 5 CFR 752.402(g)).
In sum, those who may appeal adverse actions are:
• employees in the competitive service who have completed a one-year probationary or trial period;
• veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service;
• Postal Service supervisors and managers, and Postal Service employees engaged in personnel work (other than those in non-confidential clerical positions), who have completed one year of current continuous service in the same or similar positions; and
• excepted service employees, other than preference-eligibles, who are not serving a probationary or trial period and who have completed two years of current continuous service in the same or similar positions in an executive agency.
Probationary Employees—Probationary employees have limited appeal rights. They generally may appeal a termination only based on political affiliation, marital status, or on conditions arising before employment on the grounds that the termination was not in accordance with regulations.
Under 5 CFR Parts 315 and 752, the following individuals also are “employees” for purposes of MSPB appeal rights:
• competitive service employees currently serving a probationary or trial period when they have completed one year of current continuous service under other than a temporary appointment limited to one year or less, regardless of the position previously held; and
• excepted service employees (other than preference eligibles) currently serving a probationary or trial period when they have completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less.
Voluntariness—For a removal to be appealable to MSPB, it must be involuntary (see 5 U.S.C. § 7512). Resignations are presumed to be voluntary. However, the individual may prove a resignation was involuntary if: the agency effectively imposed the terms of the employee’s resignation or retirement; the employee had no realistic alternative but to resign or retire; and the employee’s resignation or retirement was the result of improper acts by the agency. Essentially, the issue is whether, under all the circumstances, an employee was deprived of free choice.
Situations in which a resignation may be deemed involuntary include where the employee signs under duress brought by government action, the employee unsuccessfully attempted to withdraw the resignation before the effective date, the employee submitted the resignation under time pressure, the employee failed to understand the situation due to mental incompetence, or the resignation was obtained by agency misrepresentation or deception. If the employee was merely faced with a choice between two unpleasant alternatives, such as to either resign or be removed, then such a choice is not considered involuntary.
Bargaining Unit Employees—There are also additional jurisdictional issues where an employee is a member of a bargaining unit that has a negotiated grievance procedure covering actions that may be appealed to the Board. In such instances, the employee normally must pursue a grievance through the negotiated grievance procedure. When a collective bargaining agreement specifically excludes from the negotiated grievance procedure actions that are appealable to the Board, such matters can be appealed to the Board.
When a negotiated grievance procedure covers adverse actions and/or performance-based actions, the employee may use the negotiated grievance procedure or may file an appeal with the Board, but may not do both. An employee also has the choice of pursuing a grievance or an appeal to the Board when the negotiated grievance procedure covers an action appealable to the Board and the employee raises an issue of prohibited discrimination in connection with that action. When an employee affected by an action appealable to the Board alleges that the action resulted from a prohibited personnel practice, the employee may use the negotiated grievance procedure, file an appeal with the Board, or seek assistance from the Special Counsel. (Under the terms of some union contracts, Postal Service employees may be able to pursue a grievance under the negotiated grievance procedure and also file an appeal with the Board.)
Appeals to the Board must be filed in writing with the Board regional or field office having geographical jurisdiction within 30 days of the effective date of the action. MSPB’s e-Appeal Online Web site (https://e-appeal.mspb.gov) has an interactive online application that guides appellants through the process of providing the Board with the necessary information. The MSPB does not accept new appeals via email; e-Appeal Online is the only method allowed for electronic filing. If you do not want to file your appeal online, you may download an Appeal Form from www.mspb.gov/appeals/forms.htm
or obtain one through your agency personnel office and submit the appeal by mail, fax, or personal or commercial delivery in the manners described on the form.
Note: MSPB revised numerous procedural policies in amendments to 5 CFR 1200-1209 effective November 13, 2012. The changes included: clarifying employee rights if they believe they have suffered reprisal for whistleblowing; lowering the burden of proof needed to establish MSPB jurisdiction over certain complaints; lessening the documentation required in an initial appeal filing; allowing employees more time to request information from the agency after a case has started; and giving administrative judges greater leeway to delay a case at a party’s request and more authority to impose sanctions for misconduct during an appeal.
Where the notice of action does not set an effective date, the appeal must be filed within 35 days of the date of the notice. If the employee and the agency mutually agree in writing to submit the dispute to an alternative dispute resolution (ADR) process, the 30-day filing time limit is automatically extended to 60 days.
In the case of whistleblower appeals where a complaint has first been filed with the Special Counsel, the appellant may appeal directly to the Board within 65 days after the date of a written notice from the Special Counsel stating that the office will not seek corrective action. A direct appeal to the Board is also authorized if 120 days have passed since the filing of the complaint with the Special Counsel, and the Special Counsel has not advised the appellant that the office will seek corrective action on his or her behalf.
Under the Whistleblower Protection Act, an appellant may also ask the Board to stay a personnel action allegedly based on whistleblowing. A stay request may be filed when an appellant is eligible to file a whistleblower appeal, and it may be filed before, at the same time as, or after the appeal is filed. Stay requests also are filed in writing with the Board regional or field office having geographical jurisdiction. By law, stay requests must be decided within 10 days of receipt of the request.
After an appeal has been received, the regional or field office issues an order acknowledging receipt of the appeal and raising any questions of timeliness or jurisdiction. The appeal is then assigned to an administrative judge for adjudication. The agency is required to provide its evidentiary file to the appellant and the administrative judge. The appellant and the agency then have the opportunity to present additional information for the administrative judge’s consideration. Once jurisdiction and timeliness have been established, the appellant has a right to a hearing on the merits.
The agency has the burden of proving that it was justified in taking the action being appealed. If the agency meets its burden of proof, the Board must decide in favor of the agency, unless the appellant shows that there was “harmful error” in the agency’s procedures, that the agency decision was based on a prohibited personnel practice, or that the decision was not in accordance with law. The appellant has the burden of proving that the appeal is within the Board’s jurisdiction and that it was timely filed. The appellant has the burden of proving any affirmative defenses (e.g., discrimination or reprisal for whistleblowing) raised. The appellant also has the burden of proof in retirement cases.
See Whistleblowing, above, for standards of proof in whistleblower retaliation complaints.
Once the record is closed, an initial decision is issued by the administrative judge. The Board’s policy calls for the administrative judge to issue an initial decision on an appeal within 120 days from the date the appeal was filed.
When an appellant prevails in an appeal, interim relief is provided pending the outcome of any petition for review, unless the administrative judge determines that interim relief is not appropriate. An exception to interim relief is also available if the administrative judge’s decision requires the return of the appellant to the workplace and the agency determines that such a return would be unduly disruptive, although the agency will still be required to provide all pay and benefits.
An administrative judge’s initial decision on an appeal becomes the final decision of the Board unless a party files a petition for review with the Board within 35 days of the date of the initial decision or the Board reopens the case on its own motion. The Board may grant a petition for review when it is established that the initial decision of the administrative judge was based on an erroneous interpretation of statute or regulation, or that new and material evidence is available that, despite due diligence, was not available when the record was closed. The Board also has the discretion to reopen and consider an initial decision on its own motion.
The Board’s decision on a petition for review constitutes final administrative action. Further appeal then may be available in the U.S. Court of Appeals for the Federal Circuit or, in cases involving allegations of discrimination, with a U.S. district court or the Equal Employment Opportunity Commission.
The director of the OPM may intervene or petition the full Board for reconsideration of a final decision. The OPM director also may seek judicial review of a final Board decision involving the interpretation of a civil service law, rule, or regulation affecting personnel management where the Board decision will have a substantial impact on a civil service law, rule, regulation, or policy.
‘Mixed’ Appeals That Include Discrimination Issues
A “mixed case” is a complaint based on an action that is appealable to MSPB and includes one or more allegations of discrimination. Where a discrimination issue arises in connection with an action that is not appealable to the Board, the employee may pursue a remedy through internal agency procedures and the Equal Employment Opportunity Commission’s regulations (see Section 2 of this chapter).
When an appealable action has been taken against an employee and the employee raises an issue of discrimination, the employee may file a timely complaint with the agency or may file an appeal with MSPB. Employees who file a discrimination complaint with the agency then may appeal to the Board within 30 days after receipt of the agency’s decision. If the employee chooses to appeal to the Board without filing a discrimination complaint with the agency, the appeal must be filed no later than 30 days after the effective date of the agency action.
Employees who have filed a grievance with the agency under a negotiated grievance procedure may request the Board to review the final decision of the arbitrator within 35 days after the date of issuance of that decision. The discrimination issue need not have been raised before the arbitrator; it can be raised first at the Board level.
An agency has 120 days to resolve a complaint of discrimination that has been timely filed. If the agency fails to meet this time limit, the employee may file an appeal with the Board at any time after the expiration of 120 days. If the agency issues a decision before the 120-day time limit expires, but the employee is dissatisfied with the decision, he or she may file an appeal with the Board not later than 30 days after receipt of the agency decision.
When discrimination is an issue in an appeal, the Board must decide both the discrimination issue and the appealable action within 120 days. If discrimination was not an issue when the appeal was filed with the Board, but became an issue after the proceedings began, the Board must decide both the issue of discrimination and the appealable action within 120 days after the issue was raised.
If an employee raises an issue of discrimination after filing an appeal with the Board, and if the parties file a written agreement with the administrative judge that the discrimination issue should be remanded to the agency, the issue will be remanded to the agency if the administrative judge determines that remand of the issue would be in the interest of justice. The remand order will specify the time within which agency action is to be completed, which can be no longer than 120 days. When an issue of discrimination has been returned to an agency for action, the Board’s processing of the appeal must be completed within 120 days after the agency action is completed and the case is returned to the Board.
Following a final decision by the Board in a mixed case, the appellant may: (1) accept the decision of the Board; (2) file a civil action in the appropriate U.S. district court within 30 days of receipt of the Board’s final decision; (3) file a petition for review with the EEOC within 30 days of receipt of the Board’s final decision; or (4) file a petition for review of the appealable action only (not the discrimination issues) with the U.S. Court of Appeals for the Federal Circuit.
If an appellant petitions the EEOC to review the Board’s decision on the discrimination issue, the EEOC must determine whether it will consider the case within 30 days or the Board’s decision becomes final. If the EEOC determines that it will review the decision of the Board, it must complete the process and, within 60 days, either concur in the decision of the Board or report to the Board the reasons why it disagrees with the Board’s decision.
If the EEOC disagrees with the Board’s decision on the discrimination issue, the Board has 30 days in which to concur in and adopt the decision of the EEOC, reaffirm its original decision, or reaffirm its original decision with whatever revisions are considered necessary. If the Board concurs in the decision of the EEOC, that decision becomes final. However, the decision may be appealed to the appropriate U.S. district court.
If the Board does not concur in the decision of the EEOC, the matter must immediately be referred to the Special Panel. The Special Panel must issue a final decision in mixed cases no later than 45 days after the matter was referred by the Board. The decision of the Special Panel is final and may then be appealed to the appropriate U.S. district court.
Other Complaint-Handling Processes
Prohibited Personnel Practices
—If a personnel action is allegedly based on a prohibited personnel practice (including reprisal for whistleblowing), the employee may file a complaint with the Special Counsel, asking that the Special Counsel seek corrective action from the Board. If the Special Counsel does not seek corrective action from the Board, there is no further administrative recourse, except in the case of complaints alleging that the personnel action was taken because of the employee’s whistleblowing.
Whistleblower Protection Act—This law (P.L. 101-12) authorizes an appeal to MSPB if you allege that you were subject to an agency action that was taken or threatened (or is about to be taken or threatened) because of whistleblowing (see Whistleblowing, above). Unless the matter is directly appealable to the Board under law, rule, or regulation, you must first file a complaint with the Office of Special Counsel and exhaust the procedures of that office.
Presidential and Executive Office Accountability Act—This law (P.L. 104-331) authorizes appeals to MSPB by employees of the Executive Office of the President, the White House residence, and the official residence of the Vice President who allege violations of certain workplace laws, including the Family and Medical Leave Act and the Fair Labor Standards Act. You must first exhaust a mandatory period of counseling and mediation with the employing agency. Any subsequent appeal to MSPB must be filed no earlier than the 30th day and no later than the 90th day after you receive notice of the end of the mandatory period of counseling and mediation.
Uniformed Services Employment and Re-Employment Rights Act—This law (P.L. 103-353) authorizes an appeal to MSPB based on an agency’s alleged violation of employment or re-employment rights following service in a uniformed service (including discrimination based on such service or on your status as a veteran). You have the option of appealing directly to MSPB or filing a complaint with the Department of Labor’s Veterans’ Employment and Training Service (DoL/VETS). If you file with DoL/VETS, you must first exhaust that agency’s procedure and may appeal to MSPB later if DoL/VETS cannot resolve the matter.
Veterans Employment Opportunities Act—This law (P.L. 105-339) authorizes an appeal to MSPB based on an agency’s alleged violation of any law or regulation relating to veterans’ preference. You must first file a complaint with DoL/VETS and allow that agency 60 days to resolve the matter. If DoL/VETS advises you that it has been unable to resolve the matter, an appeal to MSPB must be filed within 15 days after the date you receive the DoL/VETS notice.
Matters Reviewable by OPM—Certain personnel matters that are not within the jurisdiction of either MSPB or the Special Counsel may be reviewable by the Office of Personnel Management. See Section 1 of this chapter.
Grievances—Generally, administrative grievances can be filed on matters not appealable to MSPB such as suspensions of less than 14 days, reprimands, denial of leave requests, unhealthy or uncomfortable working conditions, etc. See Administrative Grievances in Chapter 8, Section 4. However, unions with exclusive recognition rights in various units can specify in their contracts with agencies that such matters are grievable and subject to arbitration. Negotiated grievance procedures also commonly are available as an alternative channel to challenge matters that otherwise would be appealable to MSPB. See Negotiated Grievance Procedures in Chapter 8, Section 6.
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Office of Special Counsel
General Responsibilities and Procedures
The Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency that litigates before the Merit Systems Protection Board and primarily helps to enforce three federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.
OSC’s main responsibilities are:
• investigating alleged prohibited personnel practices;
• interpreting and enforcing Hatch Act provisions on political activity; and
• operating a whistleblower disclosure hotline for federal employees to report wrongdoing in government.
The Special Counsel heads the OSC and is appointed by the President and confirmed by the Senate. The agency is headquartered in Washington, DC, and has field offices in Dallas, Detroit and San Francisco. OSC can be contacted at: 1730 M St., N.W., Suite 218, Washington, DC 20036-4505; phone: (202) 254-3600; www.osc.gov.
During the course of an investigation the Special Counsel may issue subpoenas, order the taking of depositions and require responses to written interrogatories.
Prohibited Personnel Practices
While most federal employees and job applicants fall under OSC jurisdiction with regard to prohibited personnel practices (see Section 3 of this chapter for the list of those practices), there are exceptions. Employees of certain government corporations may file whistleblower complaints with OSC, but no other prohibited personnel practice complaints. Postal Service employees may file nepotism complaints with OSC, but no other kinds of complaints. Employees of most intelligence agencies, the Government Accountability Office, the Postal Regulatory Commission, and the Federal Bureau of Investigation are not within OSC jurisdiction.
Employees covered by a collective bargaining agreement must choose one of three avenues when pursuing a complaint of a prohibited personnel practice: an OSC complaint, an MSPB appeal, or a grievance under the collective bargaining agreement.
Complaints filed with the OSC are sent to OSC’s Complaints Examining Unit for initial examination. If the examination shows a potentially valid claim, the matter will be sent to OSC’s Investigation and Prosecution Division for field investigation. If a violation is found, OSC may seek a remedy. Forms of relief the OSC may take include:
• A stay of any personnel action. If the Special Counsel has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice, the OSC may ask the agency involved to delay the personnel action. If the agency does not agree to a delay, the OSC may then ask the MSPB to stay the action. The OSC cannot stay a personnel action on its own authority.
• Relief designed to make an employee whole. If an agency fails to remedy a prohibited personnel practice upon request by the OSC, corrective action may also be obtained through litigation before the MSPB. Such litigation begins with the filing of a petition by the OSC alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by the MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney’s fees, back pay, medical and other costs and damages.
• Disciplinary action against an employee who has committed a violation. The OSC may seek disciplinary action against any employee believed to be responsible for committing a prohibited personnel practice. The OSC begins a disciplinary action case by filing a complaint with the MSPB, charging an employee with the commission of a prohibited personnel practice, and seeking disciplinary action against that person. Rights of employees against whom the OSC seeks disciplinary action in these cases are set forth in MSPB regulations at 5 CFR Part 1201, subpart D. Individuals found by the MSPB to have committed a prohibited personnel practice are subject to removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or fine of up to $1,000. In the alternative, at any time during its investigation of a matter, the OSC may authorize the agency involved to take disciplinary action against an employee believed to be responsible for committing a prohibited personnel practice.
OSC offers mediation, as an alternative to investigation, in selected prohibited personnel practice cases. Participation in the OSC Mediation Program is completely voluntary for both the complainant and the employing agency. If both parties agree to mediate their dispute, the OSC assigns a neutral third party—a mediator—to facilitate a discussion between the parties to reach a mutually agreeable resolution to the complaint. See Section 7 of this chapter.
Current or former federal employees and applicants for employment who have filed a matter with the OSC alleging actual or threatened reprisal for whistleblowing may have their allegation heard by the MSPB as an “Individual Right of Action” appeal if OSC closes the matter after investigation, or if OSC does not seek corrective action within 120 days from receiving the complaint. If such an appeal is filed, MSPB may not take into account OSC’s decision to terminate an investigation of a whistleblowing complaint without seeking corrective action. See Whistleblowing in Section 3 of this chapter.
The Special Counsel may participate in most proceedings before the MSPB, but it may not intervene in certain proceedings, including Individual Right of Action cases, without the consent of the employee.
In general, employees in the Executive Branch of the federal government, whether in the competitive or the excepted service, employees of the District of Columbia government, and employees of the Postal Service are subject to certain political activity restrictions under the Hatch Act. Part-time and temporary employees are included. Certain employees, primarily in intelligence and law enforcement agencies, are under stricter prohibitions (see below).
A few exemptions are made, including employees paid from the appropriation for the office of the President and officials whose position is in the United States, who determine national policy and who are appointed by the President subject to Senate confirmation. These employees may engage in political activities while on duty, while in uniform, while in a government building, or while using a government vehicle.
OSC investigates allegations of violations of the law and files complaints of violations with the MSPB. Until enactment of P.L. 112-230 in 2012, the required penalty for a violation was removal, which could be reduced by MSPB to no less than a 30-day unpaid suspension. That law added options for a lesser suspension, reprimand, reduction in grade, a civil penalty of not more than $1,000 and debarment from federal employment for five years.
Generally Permissible and Impermissible Activities—Most employees may: run as candidates for public office in non-partisan elections; register and vote as they choose; assist in voter registration drives; express opinions about candidates and issues; contribute money to political organizations; attend political fundraising functions; attend and be active at political rallies and meetings; join and be an active member of a political party or club; sign nominating petitions; campaign for or against referendum questions, constitutional amendments and municipal ordinances; campaign for or against candidates in partisan elections; distribute campaign literature in partisan elections, and hold office in political clubs or parties.
Under the law, employees may not: use their official authority or influence to interfere with an election; solicit, accept, or receive political contributions unless both the donor and solicitor are members of the same federal labor organization or employee organization, the one solicited is not a subordinate employee and the contribution is for the organization’s multi-candidate political committee; knowingly solicit or discourage the political activity of any person who has business before the agency; engage in political activity (including sending emails that advocate for a political party or candidate for partisan public office) while on duty, in any government office, while wearing an official uniform or while using a government vehicle; be candidates for public office in partisan elections.
Employees Subject to Tighter Restrictions—Stricter prohibitions against engaging in partisan political activity cover employees including: career Senior Executive Service employees as well as employees of the Federal Election Commission, FBI, Secret Service, CIA, National Security Council, National Security Agency, Defense Intelligence Agency, Merit Systems Protection Board, Office of Special Counsel, Office of Criminal Investigations in the Internal Revenue Service, Central Imagery Office, the Office of Investigative Programs of the United States Customs Service, Office of Law Enforcement at the Bureau of Alcohol, Tobacco, Firearms and Explosives, Criminal Division of the Justice Department, administrative law judges, and Contract Appeal Board members.
These employees may: register and vote as they choose; express opinions publicly and privately on all political subjects and candidates; display a political sign in their yard; display a partisan bumper sticker on their privately-owned vehicle (when the vehicle is regularly used for work purposes, the bumper sticker should be covered—this applies to all federal employees); make a political contribution to a candidate or political party; accept appointment to a public office; participate in a non-partisan election either as a candidate or in support of a candidate; serve as an election official for the city or county; be politically active in connection with an issue not specifically identified with a political party; participate in the non-partisan activities of a civic, community, social, labor, professional, or similar organization; attend a political convention, rally, fundraiser as a spectator; sign petitions; petition Congress to express a point of view on legislation.
However, those employees may not: be candidates for public office in partisan elections; campaign for or against a candidate in a partisan election; serve as an officer of a political party; solicit, accept, or receive political contributions; sell tickets to or organize a partisan political fundraiser; take an active part in managing the political campaign of a partisan candidate for public or party office; work at the polls on behalf of a partisan candidate or political party; distribute campaign material; serve as a delegate, alternate, or proxy to a political party convention; address a convention, rally, caucus, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political office; use a personal automobile to drive voters to the polls on behalf of a political party or partisan candidate.
Exemptions in Certain Communities—Special rules apply to residents of certain communities that have large numbers of federal employees. Any community in the immediate vicinity of Washington, DC, and any municipality where the majority of voters work for the federal government may ask OPM for a partial exemption from the political activity restrictions. Employees in doubt as to whether their community has been granted this partial exemption should check with the OSC.
Electronic Communications—OSC policy is that receiving a partisan political email while at work, without more, does not constitute prohibited political activity. An employee who receives such an email may forward it to a personal address, but must not send the email to others while on duty or at work, even from a personal address. Similarly, OSC policy is that if someone else posts a link on an employee’s social media profile to the contribution page of a political party, partisan candidate, or partisan political group, or otherwise solicits political contributions, the employee does not need to remove it but also should not respond in any way that would tend to encourage readers to donate.
Employees may identify political party affiliation on their social media profiles, even if those profiles also contain their official title or position. Employees remain subject to the Hatch Act even when they act under an alias, and any pages created in an official capacity must be limited to official business matters and remain politically neutral.
Guidance on these and other issues is at www.osc.gov/hafederalfaq.htm.
Advisory Opinions—OSC issues advisory opinions on Hatch Act-related issues such as the distinctions between partisan and nonpartisan elections, coverage of specialized occupations, the use of social media, and other issues.
Whistleblower Disclosure Hotline
The OSC provides a secure channel through which federal employees and former employees (and job applicants) can disclose evidence of a violation of law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Employees who want to make such disclosures can call the hotline at (800) 572-2249 or (202) 254-3640. OSC guarantees confidentiality.
If the OSC determines that there is a substantial likelihood of wrongdoing, it can order the head of the agency concerned to conduct an investigation, and to provide a report of that investigation to the OSC. The report of investigation, with any comments by the Special Counsel and the employee whose disclosure led to the inquiry, is then sent to the President and Congress.
Other OSC Responsibilities
The Uniformed Services Employment and Re-Employment Rights Act of 1994 gave OSC authority to investigate and prosecute cases involving the denial of employment or re-employment rights to veterans and reservists seeking to return to the federal workplace after active duty with the armed services. USERRA complaints against federal agencies are first filed with the Labor Department’s Veterans Employment and Training Service; if after investigation that agency is unable to resolve a complaint, a claimant may request referral to OSC for possible representation before the Merit Systems Protection Board. Under a three-year pilot program beginning in 2011, VETS transfers certain cases to OSC for the initial investigation.
Also, OSC is authorized to investigate: activities prohibited by any civil service law, rule or regulation; allegations of arbitrary or capricious withholding of information under the Freedom of Information Act; and involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of a personnel action.
The Special Counsel also supports efforts to educate federal employees about their rights and remedies in connection with prohibited personnel practices, and about the rights and restrictions of the Hatch Act.
Requests for assistance in connection with allegations of prohibited personnel practices, and requests for the appropriate forms, should be directed to the Complaints Examining Unit, Office of Special Counsel, 1730 M St. N.W., Suite 218, Washington, DC 20036-4505; phone (800) 872-9855 and (202) 254-3670.
Inquiries about the Hatch Act may be made in writing or by phone: Hatch Act Unit, Office of Special Counsel, 1730 M St. N.W., Suite 218, Washington, DC 20036-4505; phone: (800) 854-2824, (202) 254-3650. Requests for Hatch Act advisory opinions may be made by email to firstname.lastname@example.org.
Disclosures of violations of law, rule or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a danger to public health or safety may be reported in confidence to (and the appropriate form requested from): Disclosure Unit, Office of Special Counsel, 1730 M St. N.W., Suite 218, Washington, DC 20036-4505; phone (800) 572-2249, (202) 254-3640.
Questions about the Uniformed Services Employment and Re-Employment Rights (USERRA) should be directed to: USERRA Coordinator, Office of Special Counsel, 1730 M St. N.W., Suite 218, Washington, DC 20036-4505; phone (202) 254-3600; email email@example.com.
The San Francisco Bay Area Field Office can be reached at: 1301 Clay St., Suite 1220N, Oakland, CA 94612-5217; phone (510) 637-3460; fax (510) 637-3474. The Midwest Field Office can be reached at: 211 West Fort St., Suite 521, Detroit, MI 48226; phone (313) 226-4441; fax (313) 226-5606. The Dallas Field Office can be reached at: 525 Griffin St., Room 824, Box 103, Dallas, TX 75202; phone (214) 747-1519; fax (214) 767-2764.
OSC’s Web site is www.osc.gov.
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Office of Government Ethics
The Office of Government Ethics (OGE) is an independent agency whose mission is to exercise leadership in the Executive Branch to prevent conflicts of interest on the part of government employees and to resolve conflicts that do occur. OGE can be contacted at: 1201 New York Ave. N.W., Suite 500, Washington, DC 20005-3917; phone (202) 482-9300, www.oge.gov
In partnership with Executive Branch agencies and departments, OGE is responsible for fostering high ethical standards for employees and strengthening the public’s confidence that the government’s business is conducted with impartiality and integrity. Ethics standards are found in Executive Order 12731 of 1990, the Ethics in Government Act of 1978, and the Ethics Reform Act of 1989. In addition, the primary conflict of interest statutes that OGE provides advice on are 18 U.S.C. paragraphs 202, 203, 205, 207-209. These establish requirements for executive agency employees and officers on such matters as gift acceptance, prevention of misuse of government position for private gain, outside activities and income, preferential treatment and conflicting financial interests, travel reimbursement, proper use of government assets and information, and post-government employment restrictions.
Rules governing financial disclosure, conduct standards, outside activities, post-federal employment, conflict of interest and other ethical considerations for federal employees are at 5 CFR Parts 2634-2641.
General ethics booklets, pamphlets, and other informational materials are at www.oge.gov. Distance learning courses, enrollment for in-person courses and other ethics-related information and services for ethics officials are available through https://max.omb.gov/community/display/OGE/OGE+Institute+for+Ethics+in+Government.
The agency’s responsibilities fall into six general areas:
Regulatory Authority—OGE develops, promulgates, and reviews rules and regulations pertaining to employee conflicts of interest, post-employment restrictions, standards of ethical conduct, and public and confidential financial disclosure reports in the Executive Branch.
Financial Disclosure—OGE reviews Executive Branch public financial disclosure statements of presidential nominees subject to Senate confirmation to identify and help resolve all possible conflicts of interest under applicable laws and regulations. It also oversees the administration of Executive Branch blind trusts and issues certificates of divestiture.
Education and Training—OGE provides information on and promotes understanding of ethical standards in executive agencies. It provides ethics training on the standards of conduct, the conflict of interest laws, executive orders, and regulations to Executive Branch ethics officials.
Guidance and Interpretation—OGE prepares formal advisory opinions, informal letter advice, and policy memoranda on how to interpret and comply with conflict of interest, post-employment, standards of conduct and financial disclosure requirements in the Executive Branch. It consults with agency ethics officials in individual cases.
Monitoring and Enforcement—OGE monitors and reviews executive agency ethics programs, including financial disclosure systems, refers possible violations of conflict of interest laws to the Department of Justice, and advises on prosecutions and appeals. It also reviews possible administrative ethics violations and orders corrective action or recommends disciplinary action as appropriate.
Evaluation—OGE comments on proposed ethics-related legislation and evaluates the effectiveness of conflict of interest regulations and policies of other Executive Branch agencies.
Ethical Conduct Standards
Executive Order 12674 of 1989, modified by Executive Order 12731 of 1990, sets principles of ethical conduct for Executive Branch employees.
The main areas of coverage in ethical conduct standards, at 5 CFR Part 2635, include gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of position, and outside activities. Agencies may issue supplemental regulations, which first require OGE approval.
Employees also are subject to standards that preclude the acceptance of compensation for teaching, speaking, or writing on subject matter that relates to the employee’s official duties. Additional restrictions, applicable only to senior non-career employees, prohibit the acceptance of compensation for engaging in specified outside activities. The same non-career employees are subject to a cap on the annual amount of outside income they may earn. (See 5 CFR Part 2636, Subpart C.)
Ethical Principles for Federal Employees
Executive Branch employees must adhere to the general principles of ethical conduct as well as specific ethical standards. The following is a list of the general principles that broadly define the obligations of public service:
• Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.
• Employees shall not hold financial interests that conflict with the conscientious performance of duty.
• Employees shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.
• An employee shall not, except pursuant to such reasonable exceptions as are provided by regulation, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee’s agency, or whose interests may be substantially affected by the performance or nonperformance of the employee’s duties.
• Employees shall put forth honest effort in the performance of their duties.
• Employees shall make no unauthorized commitments or promises of any kind purporting to bind the government.
• Employees shall not use public office for private gain.
• Employees shall act impartially and not give preferential treatment to any private organization or individual.
• Employees shall protect and conserve federal property and shall not use it for other than authorized activities.
• Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.
• Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
• Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as federal, state or local taxes—that are imposed by law.
• Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
• Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the standards of ethical conduct.
Gifts from Outside Sources
Executive Branch employees are subject to restrictions on the gifts that they may accept from sources outside the government. Generally they may not accept gifts that are given because of their official positions or that come from certain interested sources (“prohibited sources”). Prohibited sources include persons (or an organization made up of such persons) who:
• are seeking official action by, are doing business or seeking to do business with, or are regulated by the employee’s agency; or
• have interests that may be substantially affected by performance or nonperformance of the employee’s official duties.
In addition, an employee can never solicit or coerce the offering of a gift, or accept a gift in return for being influenced in the performance of an official act. Nor can an employee accept gifts so frequently that a reasonable person might think that the employee was using public office for private gain.
There are a number of exceptions to the ban on gifts from outside sources. These allow an employee to accept:
• a gift valued at $20 or less, provided that the total value of gifts from the same person is not more than $50 in a calendar year;
• a gift motivated solely by a family relationship or personal friendship;
• a gift based on an employee’s or his spouse’s outside business or employment relationships, including a gift customarily provided by a prospective employer as part of bona fide employment discussions;
• a gift provided in connection with certain political activities;
• gifts of free attendance at certain widely attended gatherings, provided that the agency has determined that attendance is in the interest of the agency;
• modest refreshments (such as coffee and donuts), greeting cards, plaques and other items of little intrinsic value; and
• discounts available to the public or to all government employees, rewards and prizes connected to competitions open to the general public.
There are other exceptions, including exceptions for awards and honorary degrees, attendance at certain social events, and meals, refreshments and entertainment in foreign countries. These exceptions are subject to some limitations on their use. For example, an employee can never solicit or coerce the offering of a gift. Nor can an employee use exceptions to accept gifts on such a frequent basis that a reasonable person would believe that the employee was using public office for private gain.
Another exception allows the acceptance of free attendance at an event where the employee is presenting information on behalf of the agency, called the “speaking and similar engagements” exception. The exception applies only to the day of the presentation and only when an employee is assigned to participate as a speaker or panel participant or otherwise to communicate the agency’s message in a deliberate, substantive presentation. Guidance is in OGE Legal Advisory 12-05, available at www.oge.gov.
If an employee has received a gift that cannot be accepted, the employee may return the gift or pay its market value. If the gift is perishable (such as a fruit basket or flowers) and it is not practical to return it, the gift may, with approval, be given to charity or shared in the office.
See 5 CFR §§ 2635.201-205.
Widely Attended Gatherings—There is an exception to the general ban on gift acceptance for free attendance at “widely attended gatherings” such as conferences. An agency designee must determine that the employee’s attendance at the event “is in the interest of the agency because it will further agency programs and operations.” A higher standard must be met if the donor has interests that may be substantially affected by the performance of the employee’s official duties, or if the donor is an organization a majority of whose members have such interests. Further criteria must be met if the cost of the employee’s attendance is provided by someone other than the sponsor of the event.
There also are limits on the kinds of benefits or items that an employee may accept under this provision. The exception permits a waiver of all or part of any attendance fee, as well as food, refreshments, entertainment, instruction and materials furnished to all attendees as an integral part of the event. The exception does not cover entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. Nor does the exception cover travel and lodging.
The employee generally must attend the event on personal time. However, an employee may be authorized to attend on excused absence or otherwise without charge to the employee’s leave account. An employee may not coerce or solicit an offer of free attendance. Nor may an employee accept free attendance in return for being influenced in the performance of an official act, and employees may not accept gifts of free attendance from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using his public office for private gain.
Stricter policies apply if such gatherings are sponsored by lobbying interests.
See 5 CFR §§ 2635.204(g)(2).
Free Attendance for Speakers—Employees may accept offers of free attendance on the day of an event when they are speaking or presenting information in an official capacity. The rationale is that the employee’s participation in the event on that day is viewed as a customary and necessary part of his performance of the assignment and does not involve a gift to him or to the agency. This policy also applies to agency personnel whose presence at the event is essential to the speaker’s participation at the event, such as members of security details, a representative of the agency’s public affairs division, or an aide to assist with a presentation.
See 5 CFR § 2635.204(g)(1).
Gifts of Travel—Gifts of transportation accepted in connection with official duties are considered to be accepted on behalf of the agency itself, rather than the employee, although the employee might be accepting and using the travel gift. One statutory authority, 31 U.S.C. § 1353, authorizes Executive Branch agencies to accept travel gifts from nonfederal sources for employees to attend meetings and other similar functions, such as a speaking engagement, conference, or seminar that takes place away from an employee’s official duty station. “Meeting” does not include a meeting to carry out an agency’s statutory, regulatory, or other function essential to an agency’s mission, or promotional vendor training or other meetings designed for marketing services to the government from nonfederal sources.
Travel gifts, including upgrades, accepted under this authority may never be solicited. Agencies also must analyze whether accepting the gift would create a conflict of interest.
Student Loan Reimbursements—The College Opportunity and Affordability Act, P.L. 110-315, 122 Stat. 3078 (2008), allows current and former students of institutions of higher education who go to work for the federal government to participate in such an institution’s loan forbearance or repayment programs—commonly called loan repayment assistance programs—without violating 18 U.S.C. § 209 (which generally prohibits a government employee from receiving and anyone other than the government from giving payment for performing government duties) or the gift rules if certain conditions are met. These conditions are: the payments may be made only from the government employee’s institution of higher education; the program must be provided in accordance with an institution of higher education’s written and published loan policy; and the institution’s policy must have been in place before the employee ceased to be a student at the school. The exception became effective January 1, 2008.
Financial Disclosure Filers—Those subject to financial disclosure requirements (see below) must apply a stricter set of rules that govern which gifts of tickets they must report and how they must value them for reporting purposes. A filer must report each gift received that is worth $140 or more when the total value of all such gifts from one source is $350 or more in a calendar year.
Luxury Accommodations—The value of a gift of attendance in luxury accommodations such as a skybox or private suite is determined by adding the market value of the most expensive publicly available ticket to the event to the market value of the food, parking and other tangible benefits provided in connection with the gift of attendance. The various tangible benefits included in the gift of free admission to the event may not be treated as separate gifts for reporting purposes.
Disclosure Exception—Public Law 111-259 allows the head of an element of the intelligence community to delete certain information about the receipt and disposition of foreign gifts and decorations if release of the information would adversely affect intelligence sources or methods.
Gifts Between Employees
Executive Branch employees may not give a gift to an official superior nor can an employee accept a gift from another employee who receives less pay, except in certain circumstances. On an occasional basis, the following individual gifts to a supervisor are permitted:
• gifts other than cash that are valued at no more than $10;
• food and refreshments shared in the office;
• personal hospitality in the employee’s home that is the same as that customarily provided to personal friends;
• gifts given in connection with the receipt of personal hospitality that is customary to the occasion; and
• transferred leave, provided that it is not to an immediate superior.
On certain special infrequent occasions a gift may be given that is appropriate to that occasion. These occasions include:
• events of personal significance such as marriage, illness or the birth or adoption of a child; or
• occasions that terminate the subordinate-official superior relationship such as retirement, resignation or transfer.
Employees may solicit or contribute, on a strictly voluntary basis, nominal amounts for a group gift to an official superior on a special infrequent occasion and occasionally for items such as food and refreshments to be shared among employees at the office.
See 5 CFR §§ 2635.301-304.
Conflicting Financial Interests
As an Executive Branch employee, you are prohibited by federal criminal statute from participating personally and substantially in a particular government matter that will affect your own financial interests, as well as the financial interests of:
• your spouse or minor child;
• your general partner;
• an organization in which you serve as an officer, director, trustee, general partner or employee; or
• a person with whom you are negotiating for or have an arrangement concerning prospective employment.
Several kinds of financial interests are exempt from this prohibition. These include direct or imputed financial interests in securities that are worth $15,000 or less and financial interests in diversified mutual funds and unit investment trusts, regardless of their value.
In addition, under rules finalized in March 2013 at 5 CFR § 2640.203(m), employees may participate in particular matters affecting the financial interests of nonprofit organizations in which they serve, seek to serve, or have an arrangement to serve as officers, directors or trustees in their official capacity. This typically involves situations in which employees are assigned to such service that an agency deems useful in furthering its mission or personnel development interests.
Agencies may, by supplemental regulation, prohibit or restrict the holding of certain financial interests by all or a group of agency employees. A few agencies extend such restrictions to the employee’s spouse and minor children.
There are a number of ways in which an employee may deal with a potential financial conflict of interest. These include recusals, waivers, divestiture, and use of trusts.
Waivers—Section 208(b) of Title 18 U.S.C. allows waivers of the prohibition against an employee from participating in a particular matter in which he has a personal or imputed financial interest. Waivers also are allowed in situations in which an employee’s participation in a particular matter involving specific parties would not violate section 208, but would raise a question in the mind of a reasonable person about the employee’s impartiality. When waivers are considered, an agency designee must review the facts and circumstances to determine whether to permit an employee to engage in conduct that otherwise would be prohibited or questionable. Such waivers must be granted before an employee engages in a potentially prohibited activity and must be based upon full disclosure of the financial interest involved and a specific agency determination that the employee’s interest is not so substantial as to be likely to affect the integrity of the services that the government may expect. Waivers also are permitted for certain investments that track broad financial sectors and may be granted to employees who fulfill certain roles in nonprofit organizations in their official government capacities.
See 5 CFR §§ 2635 and 2640.
Financial Disclosure Requirements
—Certain senior officers and employees of the Executive Branch, including persons who are nominated by the President for positions requiring confirmation by the Senate, are required by law to file public financial disclosure reports (Standard Form 278) disclosing their financial interests as well as the interests of their spouse and minor children. Public filers must report:
• interests in property held in a trade or business or for investment or the production of income (real estate, stocks, bonds, securities, futures contracts, beneficial interests in trusts or estates, pensions and annuities, mutual funds, etc.) that meet reporting thresholds;
• earned income, retirement benefits, honoraria and any other non-investment income;
• gifts and reimbursements that meet reporting thresholds;
• liabilities (personal loans from certain family members, a mortgage on a personal residence, automobile, furniture and appliance loans, revolving charge accounts that do not exceed $10,000 at the close of the reporting period are excluded from reporting);
• agreements or arrangements with respect to future employment, leaves of absence and continuation of payments or benefits from a former employer; and
• outside positions as an officer, director, trustee, general partner, proprietor, employee, consultant, etc. of any organization (positions with religious, social, fraternal or political entities are excluded, as are solely honorary positions).
Under the Stop Trading on Congressional Knowledge Act of 2012, P.L. 112-105, public financial disclosure filers generally must disclose certain transactions within 30 days and no later than 45 days after such a transaction. The requirement applies to any purchase, sale or exchange of stocks, bonds, commodities futures or other forms of securities owned or acquired by the covered employee, if the amount of the transaction exceeds $1,000. Certain exceptions apply; see OGE Legal Advisory 12-04 at www.oge.gov. The change, effective July 3, 2012, replaced a former requirement that such transactions needed to be reported only with the annual filing of Form 278. A later amendment by P.L. 112-178 extended that new reporting requirement to transactions by spouses and dependent children, effective with calender year 2013; see OGE Legal Advisory 13-01 at www.oge.gov. (Note: A provision of P.L. 112-105 to require that Form 278 disclosures be posted online never took effect due to a series of delays enacted in 2012 and ultimately was repealed by P.L. 113-7 of 2013.)
Confidential Reports—Certain executive branch employees whose duties involve the exercise of discretion in sensitive areas such as contracting, procurement, administration of grants and licenses, and regulating or auditing nonfederal entities are required to file confidential financial disclosure reports (OGE Form 450). This reporting system generally tracks the approach of the public disclosure system except that the reports are not available to the public.
See 5 CFR Part 2634.
Impartiality in Performing Official Duties
Executive Branch employees are required to consider whether their impartiality may be questioned whenever their involvement in a particular matter involving specific parties might affect certain personal and business relationships. A pending case, contract, grant, permit, license or loan are some examples of particular matters involving specific parties. A general rulemaking, on the other hand, is not.
If a particular matter involving specific parties would have an effect on the financial interest of a member of your household or if a person with whom you have a “covered relationship” is or represents a party to such a matter, then you must consider whether a reasonable person would question your impartiality in the matter. If you conclude that there would be an appearance problem, you should not participate in the matter unless authorized by your agency.
You are considered to have a covered relationship with the following persons:
• a person with whom you have or seek to have a business, contractual or other financial relationship;
• a person who is a member of your household or is a relative with whom you have a close personal relationship;
• a person for whom your spouse, parent or dependent child serves or seeks to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
• any person for whom you have within the last year served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
• any organization (other than a political party) in which you are an active participant.
If you have a concern that circumstances other than those expressly described in the regulation may raise a question about your impartiality, you should determine whether or not participation in the particular matter would be appropriate.
If someone who is entering government service has received a special severance payment or other benefit in excess of $10,000 which his former employer does not make to other departing employees not entering into federal service, and if certain other factors are present, then the employee must be disqualified for two years from participating in any particular matter in which the former employer is a party or represents a party. The agency may waive or shorten the disqualification period.
See 5 CFR §§ 2635.501-503.
Misuse of Position
Executive Branch employees must not use their public office for their own or another’s private gain. Employees are not to use their position, title or any authority associated with their office to coerce or induce a benefit for themselves or others. Employees also are not to use or allow the improper use of nonpublic information to further a private interest, either their own or another’s.
Employees may use government property only for authorized purposes. Government property includes office supplies, telephones, computers, copiers and any other property purchased with government funds. Also see Personal Use of Office Equipment in Chapter 8, Section 4.
Employees may not misuse official time. This includes the employee’s own time as well as the time of a subordinate.
See 5 CFR §§ 2635.701-705.
Employment References—Section 2635.702 of 5 CFR generally prohibits an employee from using his government position, title or authority in a manner that is designed to coerce or induce a benefit or to create a government endorsement or sanction for the private gain of a friend, relative or other person with whom the employee is associated in a nongovernmental capacity. Creating the appearance that these ethical standards have been violated also is prohibited.
OGE recognizes that employment contacts and recommendations are conventional business practices and are often unobjectionable. Nevertheless, Executive Branch employees are obligated to ensure that any contacts they make do not create the appearance of inappropriately using public office for private gain. In making such a determination, OGE considers factors including who initiated the employment contact, whether the employee has a relationship with the prospective employer independent of the federal workplace, whether the prospective employer is affected by the operations of the employee’s agency, the nature of the relationship between the employee and the person on whose behalf he is making the contact, and whether the employee uses government resources to make the employment contact.
—An employee may not have outside employment or be involved in an outside activity that conflicts with the official duties of the employee’s position. An activity conflicts with official duties if it is prohibited by statute or by the regulations of the employee’s agency, or if the activity would require the employee to be disqualified from matters so central to the performance of the employee’s official duties as to materially impair the employee’s ability to carry out those duties.
All federal personnel are subject to 18 U.S.C. 208, which prohibits employees from participating personally and substantially in particular matters that have a direct and predictable effect on the employee’s financial interest, and the financial interest of any employer. Employees should disqualify themselves from participating in an activity that would affect the outside employer, to avoid violating 18 U.S.C. 208.
Presidential appointees to full-time, non-career positions generally are prohibited from receiving outside earned income. Also, certain other non-career employees are subject to monetary limitations on the amount of outside income that they may earn.
Regulations at 5 CFR 2635.502 state that if an employee has a “covered relationship” with a business such as by way of outside employment, such an arrangement might create the appearance of a conflict of interest if the employee is working on a matter that could be perceived as affecting the outside employer. If so, the employee’s supervisor may determine if the employee still may be authorized to participate in that matter in an official capacity.
Under Public Law 111-259, the Director of National Intelligence submits an annual report to the congressional intelligence committees detailing authorized instances of outside employment for intelligence officers and employees.
Fundraising—Employees may engage in fundraising in a personal capacity subject to several restrictions. An employee cannot solicit funds from subordinates. And an employee cannot solicit funds from persons who have interests that may be affected by the employee’s agency such as those who are regulated by, seeking official action from, or doing business with the agency. Also an employee cannot use or permit the use of the employee’s official title, position or authority to promote the fundraising effort.
Speaking and Writing—Under 5 CFR § 2635.807 federal employees are prohibited from receiving compensation from any source other than the government for teaching, speaking, or writing that relates to official duties. Writing relates to an employee’s official duties if the circumstances indicate that the invitation was extended primarily because of an employee’s official position rather than the employee’s expertise on the particular subject matter, or if the subject of the activity deals in significant part with any ongoing or announced policy, program or operation of the agency. This ban does not prohibit an employee from receiving compensation for teaching, speaking or writing on a subject within the employee’s discipline or inherent area of expertise based on his or her educational background or experience even though the teaching, speaking or writing deals generally with a subject within the agency’s areas of responsibility.
The application of ethics rules to book writing can depend on issues such as the category of employee, the subject of the book, the timing and type of compensation, the source of the compensation and its motivation. For example, a book may be deemed related to an employee’s official duties based on its subject matter or based on who is providing the compensation and why. Prohibitions generally don’t apply to compensation for books written before government service, or for writing—such as a book written on speculation with no agreement that the book will be published—where no compensation is received.
Restrictions apply even to uncompensated teaching, speaking, and writing. For example, an employee may include or permit the inclusion of his or her title or position as one of several biographical details in identifying information only if it is given no more prominence than other significant biographical details. However, the employee is not accountable for changes made by an editor or someone else outside the employee’s control whose revisions result in undue prominence being given to the employee’s title or official position, so long as the employee has complied with the requirement in good faith.
In addition, employees publishing in scientific or professional journals in their personal capacities may use their title or official position but also must include a disclaimer stating that the views expressed do not necessarily represent those of the employee’s agency or the United States. Such disclaimers may be included as a matter of prudence in other types of writing. In both cases, OGE recognizes that an employee might not have the final decision as to what is ultimately published.
Witness Testimony—Rules at 5 CFR 2635.805 generally bar current employees from testifying as expert witness in a federal forum where the United States is a party or has a direct and substantial interest, and 18 U.S.C. 207(a)(1) & (j)(6) generally bars former employees from testifying as expert on same official matter in which they participated for the government. Not prohibited is fact testimony—testifying solely as to facts within witness’s personal knowledge—or lay opinion testimony—opinions or inferences rationally based on witness’s own perceptions and not based on scientific, technical, or other specialized knowledge. Disputes may arise over the nature of the planned testimony, however, so care must be exercised and agency ethics and legal counsel offices should be consulted. State proceedings are not covered by the prohibitions, although employees still must follow rules prohibiting use of public office for private gain.
Awards and Prizes—Rules at 5 CFR 2635.204(d) require that the agency ethics official approve, by written determination, any awards to personnel that exceed $200 in market value, and all awards in cash or investment interests.
Individual Agency Policies—Individual agencies have rules regarding outside activities. For example:
• Section 2-206 of DoD 5500.7-R, the Joint Ethics Regulation (JER), requires Department of Defense personnel who file a financial disclosure report (Standard Form 278 or OGE Form 450) to obtain approval from their supervisor before accepting honoraria or outside employment from a “prohibited source” (essentially someone doing or seeking to do business with DoD). Section 2-303 of the JER authorizes supervisors to require approval of the outside activity in advance.
• a National Institutes of Health policy (http://ethics.od.nih.gov/overview.htm) generally prohibits outside consulting by NIH staff with substantially affected organizations, such as pharmaceutical, biotechnology or medical device manufacturing companies, health care providers or insurers, and supported research institutions.
A compilation of individual agency policies is at www.oge.gov—select Laws and Regulations, then Agency Supplemental Regulations. Also contact your agency’s ethics office.
Seeking Outside Employment
An Executive Branch employee may not participate in any particular government matter that will affect the financial interests of a person or entity with whom he is seeking employment (see 18 U.S.C. § 208 and 5 CFR § 2635.601-606). An employee is considered to be seeking employment if:
• the employee is engaged in actual negotiations for employment;
• a potential employer has contacted the employee about possible employment and the employee makes a response other than rejection; and
• the employee has contacted a prospective employer about possible employment (unless the sole purpose of the contact is to request a job application or if the person contacted is affected by the performance of the employee’s duties only as part of an industry).
An employee is considered no longer seeking employment if:
• either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended; or
• two months have elapsed since the employee’s dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer.
In some cases, an employee may be authorized by an agency official to participate in particular matters from which he would otherwise have to be disqualified due to his job search. In other cases, an agency ethics official may determine that an employee who has sought, but is no longer seeking, employment nevertheless shall be subject to a continuing period of disqualification.
If a search firm or other intermediary is involved, the employee is not disqualified unless the intermediary identifies the prospective employer to the employee.
The Stop Trading on Congressional Knowledge Act of 2012, P.L. 112-105, requires that public financial disclosure filers must report to their supervising ethics offices all negotiations or agreements for future private employment within three days after commencement of such negotiations or agreement, and then recuse themselves when there is a conflict of interest or an appearance of a conflict of interest. The restriction also applies when an employee negotiates for or has an agreement with a non-federal entity of future compensation for providing personal services which might not be considered employment as may arise when, for example, post-government teaching, speaking, or writing activity. For this purpose, compensation includes potential income such as royalties as well as payment for transportation, lodging and meals, but not income from investment activities where the employee’s services are not a material factor in the production of income. See OGE Legal Advisories 12-01 and 13-06 at www.oge.gov.
Additional restrictions apply under the Procurement Integrity Act (see 5 CFR 2635.107 and 41 U.S.C.A. 2101-07) to employees involved in acquisition. In sum, once they have started seeking employment with a bidder or offeror, they may not take any official action in a procurement for $100,000 or more. Guidance for Defense Department employees under this act is at www.defenselink.mil/dodgc/defense_ethics—select Ethics Resource Library, then DoD Guidance.
Employees terminating government service are subject to the post-employment restrictions of 18 U.S.C. § 207 as amended by the Ethics Reform Act of 1989. Provisions of Section 207, as amended, restrict former employees of the Executive Branch from making any communication to or appearance before an employee of the United States on behalf of any other person concerning a particular matter involving specific parties, for example, a particular contract, that was either under the former employee’s official responsibility (two-year bar) or one in which the former employee had participated personally and substantially (lifetime bar).
In general, Section 207 does not prohibit behind the scenes assistance to a new nongovernment employer, although former employees who participated in trade or treaty negotiations or who now seek to represent “foreign entities” face restrictions in this regard.
Some agencies require that departing or former employees file reports concerning their new employment if they are not going to another federal position for which public financial disclosure is required. If they have negotiated a job in the private sector, they must indicate that they have an agreement or arrangement with a private sector employer.
Additional Restrictions on ‘Senior’ Employees—“Senior” employees—those whose basic pay rate is at or above 86.5 percent of the rate for Executive Schedule Level II—are subject to certain additional restrictions under 18 U.S.C. Section 207 after leaving such a position (see 5 CFR Part 2637 and 5 CFR Part 2641):
• For one year, they may not represent someone else, with the intent to influence, before their former agency regarding any official action (for purposes of this policy, some larger agencies are divided into components, meaning that an employee who left one component for another could not communicate back to the prior component on behalf of the new one); and may not aid, advise or represent a foreign government or foreign political party with intent to influence the U.S. government.
• For two years, they may not represent someone else to the government regarding particular matters that they did not work on personally, but were pending under their responsibility during their last year of government service.
• There is a lifetime ban against representing someone else to the government regarding particular matters that they worked on while in government service.
Further restrictions apply to former “very senior” employees, which include Cabinet secretaries, the Vice President and very high-level White House staff. A two-year “cooling off period” applies to them during which they are prohibited from representing anyone other than the United States before any department or agency in which they served and before certain high level Executive Branch officials, under P.L. 110-81. The same restriction applies to former Senators; a one-year period applies to former House members.
Other Statutes—Other statutes impose post-employment restrictions in addition to those of Section 207. For example, the “procurement integrity” provisions of 41 U.S.C. 423 (implemented in the Federal Acquisition Regulation) contain additional post-employment restrictions (as well as restrictions on activities before leaving government; see above) for certain former government officials—for example, restrictions for one year after a certain designated date on accepting compensation from the concerned contractor on a contract above $10 million on which the individual performed certain services while a government employee. These provisions also prohibit the release of contractor bid or proposal information and source selection information. A booklet titled Ethics & Procurement Integrity: What You Need to Know as a Federal Employee Involved in the Procurement and Acquisition Process is at www.oge.gov—select Education, then Education Resources for Federal Employees.
Similarly, under 18 U.S.C. Section 203, former “senior” employees may not accept compensation for representational services that were provided by anyone while they were a government employee, before a federal agency or court regarding particular matters in which the government was a party or had a substantial interest. This prohibition may affect personnel who leave the government and share in the proceeds of a partnership or business for representational services that occurred before the employee terminated federal service, such as through lobbying, consulting, and legal representation.
Public Law 110-181, Section 847, requires that a Defense Department official who has participated personally and substantially in a DoD acquisition exceeding $10 million, or who has held a key acquisition position, must obtain a written opinion from a DoD ethics counselor regarding the activities that the official may undertake on behalf of a DoD contractor within two years after leaving DoD service. In addition, Section 847 prohibits a DoD contractor from providing compensation to such a DoD official without first determining that the official has received or appropriately requested a post-employment ethics opinion. Implementing rules are at 48 CFR Parts 203, 209, and 252.
In addition, there are agency-specific statutes that restrict the post-employment activities of their former employees. A compilation of individual agency policies is at www.oge.gov—select Laws and Regulations, then Agency Supplemental Regulations. Also contact your agency’s ethics office.
Representation of Private Interests
Executive Branch employees are subject to criminal statutes that prohibit the representation of private interests before the government. One of these laws prohibits an employee from prosecuting a claim against the United States or acting as the agent or attorney of a private party before the government in connection with a particular matter in which the United States is a party or has a direct and substantial interest. This prohibition applies whether or not the employee receives compensation for the representation.Executive Branch employees are subject to criminal statutes that prohibit the representation of private interests before the government. One of these laws prohibits an employee from prosecuting a claim against the United States or acting as the agent or attorney of a private party before the government in connection with a particular matter in which the United States is a party or has a direct and substantial interest. This prohibition applies whether or not the employee receives compensation for the representation.
There is an exception that allows an employee to represent, with or without compensation, the employee (self-representation), a parent, spouse or child of the employee, or a person or estate that the employee serves as a guardian, executor, administrator, trustee or personal fiduciary.
The matter involved may not be one in which the employee participated personally and substantially or which was the subject of the employee’s official responsibility. Also the employee must obtain approval for the activity from the employee’s appointing official.
An employee may represent employee non-profit organizations (such as child care centers, recreational associations, professional organizations, credit unions or other similar groups) before the government under certain circumstances. The employee may not be compensated. And the employee may not represent an employee group in claims against the government, in seeking grants, contracts or cash from the government, or in litigation where the group is a party.
An employee also may represent a person who is the subject of disciplinary, loyalty, or personnel administration proceedings.
Another law governing representational activity prohibits an employee from accepting compensation for certain representational services before the government whether those services were provided by the employee personally or by some other person. There are exceptions that allow for the representation of a parent, spouse, child or person served in a fiduciary capacity.
See 18 U.S.C. §§ 205, 203.
Supplementation of Salary
Executive Branch employees may not be paid by someone other than the United States for doing their government job. Thus, for example, a highly paid executive of a corporation upon entering government service could not accept an offer from her former employer to make up the difference between her government salary and the compensation she received from her former employer.
This prohibition does not apply to:
• special government employees and employees serving without compensation;
• funds contributed out of the treasury of any state, county, or municipality;
• continued participation in a bona fide pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan maintained by a former employer;
• payments for travel, subsistence and other expenses made to an employee by a tax-exempt non-profit organization incurred in connection with training; or
• moving expenses incurred in connection with participation in an executive exchange or fellowship program in an executive agency.
See 18 U.S.C. § 209.
Ethics Pledge for Appointees
Executive Order 13490 of 2009 requires every full-time, political appointee appointed on or after January 20, 2009, to sign an ethics pledge upon becoming an appointee regardless of whether they are appointed by the President, the Vice President, an agency head, or otherwise. Unlike certain other ethical requirements, the pledge requirement applies without regard to the salary level of the political appointee. Individuals appointed to a career position are not required to sign the pledge.
Generally, appointees subject to the pledge must commit to:
• not accept gifts or gratuities from registered lobbyists or lobbying organizations (with limited exceptions); and
• recuse themselves for two years from any particular matter involving specific parties in which a former employer or client is or represents a party, if the appointee served that employer or client during the two years prior to the appointment.
An appointee who was a registered lobbyist during the prior two years must additionally recuse, for two years after appointment, from any particular matter on which he or she lobbied during the two years prior to appointment or any particular matter that falls within the same specific issue area, and not seek or accept employment with an agency or department that he or she lobbied during the prior two years.
An appointee subject to the senior employee post-employment restriction in 18 U.S.C. § 207(c) must agree to: abide by such restrictions for two years after termination of the appointment; not lobby any covered Executive Branch official as described in the Lobbying Disclosure Act or any non-career SES appointee during the present Presidential administration; and pledge that any hiring or other employment decisions will be based on the candidate's qualifications, competence and experience.
The order provides for enforcement of the pledge through civil action by the Justice Department and agency debarment proceedings against former appointees found to have violated the pledge. It also outlines agency responsibilities and allows for waivers in limited circumstances.
Each agency is required to appoint a designated agency ethics official to coordinate and manage the agency’s ethics program. Employees should first contact their agency ethics official with questions concerning the standards of conduct, conflicts of interest, financial disclosure, or agency-specific requirements, or to obtain copies of relevant laws. They may also seek advice by calling or writing to the Office of Government Ethics at Suite 500, 1201 New York Ave. N.W., Washington, DC 20005-3917, phone (202) 208-9300. OGE’s Web site at www.oge.gov
contains various executive orders, statutes, and regulations that form the basis for the Executive Branch ethics program, as well as ethics advisory opinions, letters that interpret ethics materials, downloadable forms, and electronically fileable versions of some forms.
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Federal Labor Relations Authority
The Federal Labor Relations Authority (FLRA) administers the federal labor relations program, performing the “third party” functions as an independent and neutral body. It interprets and enforces the Federal Service Labor-Management Relations Statute (Chapter 71, Title 5, U.S. Code), which protects the rights of employees of the federal government to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions that affect them. The Authority also ensures compliance with the statutory rights and obligations of federal employees and the labor organizations that represent them in their dealings with federal agencies. The FLRA can be contacted at: 1400 K St. N.W., Washington, DC 20424; phone: (202) 218-7770, www.flra.gov
Labor Relations Role
The Authority provides leadership in establishing policies and guidance relating to the federal service labor-management relations program. In addition, FLRA:
• determines the appropriateness of bargaining units;
• supervises or conducts representation elections;
• prescribes criteria and resolves issues relating to the granting of consultation rights to labor organizations with respect to internal agency policies and government-wide rules and regulations;
• resolves negotiability disputes, unfair labor practice complaints, and exceptions to arbitration awards; and
• takes such other actions as are necessary and appropriate to effectively administer the provisions of the statute.
The jurisdiction of the FLRA extends to Executive Branch agencies as well as the Library of Congress and Government Printing Office, both Legislative Branch agencies, and to U.S. citizens and foreign nationals in that area of the Republic of Panama formerly known as the Canal Zone. Agencies not within FLRA jurisdiction include the Government Accountability Office, the Postal Service, the Tennessee Valley Authority, the Federal Bureau of Investigation, and intelligence agencies.
For information on labor policies, see Chapter 8, Section 6.
Organization and Structure
The Authority is composed of three members appointed by the President, subject to Senate confirmation, for a five-year term. One member is designated by the President as the chairman and serves as the chief executive and administrative officer of the Authority. The general counsel of the Authority is appointed by the President subject to confirmation for a five-year term. As established by the Foreign Service Act of 1980, the chairman and the general counsel of the Authority also serve as the chairman and general counsel to the Foreign Service Labor Relations Board, which administers a separate labor-management relations program for Foreign Service personnel.
Office of Administrative Law Judges—The administrative law judges (ALJs) hear unfair labor practice complaints and issue decisions which are reviewed by the Authority members who can affirm, modify, or reverse an ALJ’s recommendation. Almost all unfair labor practice complaints moving from the regional office to the adjudicative process are initially heard by the Office of the Administrative Law Judges. A small number of cases come as stipulated records, directly to the Authority without ALJ involvement.
Office of the Solicitor—The FLRA may seek enforcement of its decisions and orders in a U.S. circuit court of appeals. Any person aggrieved by a final order of the FLRA can institute an action for judicial review in the court of appeals, requiring the FLRA to defend its final order in court. The Office of the Solicitor is responsible for this representation. Additionally, the solicitor’s office advises the authority on: (1) legal questions presented by major case decisions and policy statements, and (2) the impact of statutes, executive orders, and regulations on case processing.
Collaboration and Alternative Dispute Resolution—The Collaboration and Alternative Dispute Resolution program (CADR) integrates alternative dispute resolution (ADR) into all of FLRA’s case processes, that is, negotiability, arbitration, representation, unfair labor practice, and impasse bargaining processes. CADR provides prevention and intervention, ADR design, and facilitation and training services to parties on a joint and voluntary basis in pending cases and case-related matters. See Section 7 of this chapter.
Office of the General Counsel—The Office of the General Counsel is responsible for investigating alleged unfair labor practices, filing and prosecuting unfair labor practice complaints, and processing representation petitions, including representation elections to determine whether employees wish to be represented by a labor organization. The general counsel’s decision to sustain a regional director’s dismissal of an unfair labor practice charge is final.
The general counsel has authority over and is responsible for employees in the regional offices and for the effective and efficient operation and administration of the Authority’s regional offices.
The general counsel and his/her executive staff provide advice, assistance, and review of all phases of field office operations to ensure policy and procedure conformance.
Regional Offices—FLRA regional offices (see accompanying table) are responsible for initially investigating and processing all representation and unfair labor practice cases.
The Foreign Service Labor Relations Board—The FSLRB is composed of three members appointed by the chairman of the Authority and administers the labor-management relations program for Foreign Service employees in the U.S. Information Agency, the Agency for International Development, and the Departments of State, Agriculture and Commerce.
The Foreign Service Impasse Disputes Panel—The Disputes Panel consists of five part-time members appointed by the chairman of the Foreign Service Labor Relations Board (the FLRA chairman) and resolves impasses between federal agencies and Foreign Service personnel in the U.S. Information Agency, the Agency for International Development and the Departments of State, Agriculture and Commerce over conditions of employment under the Foreign Service Act of 1980.
The Federal Service Impasses Panel
The role of the Federal Service Impasses Panel (FSIP) is to provide assistance to federal agencies and unions representing federal employees in resolving impasses arising from negotiations over conditions of employment. The FSIP can be contacted at: 1400 K St. N.W., Suite 200, Washington, DC 20424-0001, phone (202) 218-7790, fax (202) 482-6674, and at www.flra.gov/fsip
If bargaining between the parties and mediation assistance from the Federal Mediation and Conciliation Service prove unsuccessful, the panel, as an entity within the Federal Labor Relations Authority, has authority under section 7119 of the Federal Service Labor-Management Relations Statute to recommend procedures, such as arbitration, for the resolution of an impasse. It also provides direct assistance to the parties through fact-finding, written submissions, or other methods it deems appropriate.
If these efforts do not lead to a settlement, the panel may take whatever action is necessary to resolve the impasse. Such final action, typically an arbitration award or a decision and order of the panel itself, is binding on the parties during the term of their agreement unless they agree otherwise. If the parties to a negotiation impasse agree to adopt a procedure for using a private arbitrator, the procedure must be approved by the panel.
The statute also assigns special third-party functions to the Federal Mediation and Conciliation Service (FMCS) and to the Assistant Secretary of Labor for the Office of the American Workplace, an agency and entity outside the Federal Labor Relations Authority. FMCS provides services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses, prior to or in conjunction with the panel. The assistant secretary enforces standards of conduct for unions governing democratic process and fiscal integrity.
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Alternative Dispute Resolution and Settlements
Each of the federal appeals agencies employs various alternative dispute resolution techniques and settlement initiatives to adjudicate matters over which it has jurisdiction, and each is engaged in substantial outreach efforts to encourage potential litigants to use their respective ADR and settlement processes. For contact information, see the sections on each agency in this chapter. Further, individual employing agencies, in some cases at the direction of the appellate agencies, use many of the same types of techniques to resolve disputes before they turn into formal appeals.
Equal Employment Opportunity Commission
Under 29 CFR 1614.102(b)(2), all federal agencies are required to make available an ADR program during the pre-complaint and formal complaint stages of the EEO process. EEO Management Directive 110 (MD-110) provides that aggrieved individuals who seek pre-complaint counseling must be fully informed of their agency’s ADR program and how the ADR program works.
Agencies need not offer ADR in every case; they have the discretion to determine when an EEO matter is appropriate for ADR. Complainants may not file a new complaint based on the agency's refusal to offer ADR in their case.
Mediation has been the most common form of ADR offered by agencies in the EEO process. The EEOC has encouraged agencies to experiment with other forms of ADR, including a combination of techniques.
Many agencies have established pilot programs to decrease the processing time of EEO complaints and improve the overall satisfaction of the participants.
If the agency offers ADR during the pre-complaint, or the informal stage of the EEO process, the complainant may choose between participating in the ADR program or the traditional EEO counseling activities. Once the complainant elects to participate in the ADR program, all EEO counseling activities will end. Electing ADR increases the EEO pre-complaint processing period from 30 to 90 days. If the matter concludes without resolution after 90 days, the agency will conduct a final interview, and issue a notice of right to file a formal complaint to the complainant.
If the complainant files a complaint, the agency may also choose to offer ADR during the formal complaint stage. The 180-day processing period for the formal complaint stage may be increased by an additional 90 days in order to conduct ADR, if the parties agree to do so in writing.
Once the ADR proceeding ends, complainants may re-enter the traditional EEO complaint process in order to pursue their claim. Moreover, any agreements between the parties must have been reached without coercion or duress. Information concerning the underlying facts of an ADR proceeding and records generated as part of that proceeding may not be made part of the EEO complaint record. In order to have an enforceable settlement agreement, the agreement must be in writing and signed by both parties.
Nothing said or done during attempts to resolve the matter through ADR proceedings may be made the subject of an EEO complaint.
RESOLVE Program—EEOC’s RESOLVE program offers mediation as an alternative to the traditional dispute resolution processes, such as the EEO complaint process and the negotiated grievance procedure.
A trained mediator assists the parties in an attempt to reach a negotiated resolution of a workplace dispute. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties to the dispute. Instead, the mediator helps the parties to jointly explore and reconcile their differences. The mediation process is confidential.
If an employee chooses to try the RESOLVE program to resolve a dispute, the time frame for filing a grievance at step I of the negotiated grievance procedure is suspended while he/she attempts mediation. If an employee chooses to initiate the EEO complaint process, mediation through the RESOLVE program is available during the EEO counseling and investigative phases of that process.
An employee may opt out of mediation at any point prior to the resolution of a dispute. Employees who choose to participate in mediation must attend the mediation session, participate in good faith and make every reasonable effort to reach a resolution of the dispute.
Managers, supervisors and employees can refer disputes to the program. If an employee elects to participate in ADR, his or her supervisor or manager is required to participate.
Participants in the mediation process include the parties to the dispute, the mediator, and, if not a party to the dispute, a management official with the authority to resolve the dispute. In addition, the employee may bring a representative to participate in the ADR process. The representative may be an attorney or a union official. Both employees and their representatives, if he/she is a union official, are entitled to a reasonable amount of official time/administrative time to participate in the mediation process. If one of the parties to a dispute is a supervisor or management official, a representative of the agency may also attend the mediation session.
If the parties resolve the dispute, the mediator will help them draft a settlement agreement. In order to have an enforceable settlement agreement, the agreement must be in writing and signed by both parties. The settlement agreement is a legally binding contract that can be enforced by either party. Regulations at 29 CFR 1614.504 set forth procedures by which the EEOC enforces settlement agreements.
If the dispute is not resolved through the RESOLVE program, employees still have the right to pursue the matter through the traditional dispute resolution processes.
Federal Appellate Settlement Team (FAST) Program—The FAST program, which uses ADR techniques to resolve EEO appeals that have been filed in the Office of Federal Operations, is available, upon request, to parties who have an appeal pending before the EEOC. Participation is voluntary for both parties.
The program offers parties the opportunity to engage in settlement discussions either by attending a meeting in Washington, DC, or by engaging in discussions over the telephone. The ADR techniques are conducted by EEOC staff. If a dispute is not resolved within 60 days of the date that both parties agreed to participate, the EEOC will terminate the ADR process and the case will be referred back for adjudication on the merits. The neutrals will have no further role in the subsequent adjudication of the case.
There is no cost to participate in the program. However, the EEOC will not pay travel or per diem costs for parties who choose to travel to Washington, DC, to attend a FAST program meeting.
Federal Sector Mediation Services Program—The FSMS program provides small federal agencies with mediation services. Agencies enter into a memorandum of understanding with the EEOC, whereby they agree to reimburse it for mediating EEO cases. Mediations are conducted by EEOC staff. Agencies have the option of submitting only those cases to the FSMS program that they deem appropriate for ADR. If the dispute is not resolved within 60 days, the EEOC will return the case to the agency and the mediators will have no further role in the subsequent adjudication process.
Further information is at www.eeoc.gov/federal/adr.
Merit Systems Protection Board
MSPB operates settlement initiatives both at the administrative judge and Board levels. Overall, more than half of the appeals filed with the Board that are not dismissed for jurisdictional reasons are settled.
Administrative judges at the regional level may initiate attempts to settle the appeal informally at any time, beginning in some cases with the initial filing of the appeal. The administrative judge may conduct pre-hearing conferences to help achieve resolution of an appeal, or another judge may be assigned to act as a settlement judge. In most cases, settlement agreements are entered into the record, with the Board retaining enforcement authority.
A case may be suspended to permit the parties to pursue discovery or settlement. The parties may submit a joint request for additional time. Upon receipt of such a request, the judge will suspend processing of the case for up to 30 days. The judge will grant an extension of the suspension period for up to an additional 30 days upon a joint request from the parties for additional time. Either party may submit a unilateral request for additional time to pursue discovery, which may be granted at the discretion of the judge. The suspension period may be terminated prior to the end of the agreed upon period if the parties request the judge’s assistance relative to discovery or settlement during the suspension period and the judge’s involvement under that request is likely to be extensive.
MSPB’s Mediation Appeals Program offers the services of mediators who can facilitate discussion between the parties to help them identify issues and barriers to agreement that will aid in resolving their disputes and settling the appeal. Both parties must agree to its use before the appeal will be accepted for mediation, and both must agree on its resolution before any settlement is concluded. Arrangements are made through the administrative judge assigned to an appeal. Further information is at www.mspb.gov/appeals/mediationappeals.htm.
At the Board level, officials select cases that appear to have the most potential for settlement. Board settlement attorneys contact the parties in the case to initiate the resolution process and may in some cases use the services of an outside neutral to facilitate settlement.
MSPB provides an automatic extension of the regulatory time limit for filing an appeal with MSPB where an appellant and agency mutually agree, prior to the timely filing of an appeal, to attempt to resolve their dispute through an ADR process. It also has developed a program of instruction for dispute prevention specialists who can help intercept and resolve cases prior to adjudication by MSPB. The goals of the program are to help agencies anticipate, manage and reduce workplace conflict and tension while reducing costs directly and indirectly related to workplace conflicts.
MSPB also conducts an outreach program to help educate those who might be involved in Board matters, making administrative judges and other agency officials available to speak in various forums, and providing opportunities for practitioners before the Board to participate in skills-building training sessions which may include exercises in settling appeals as an alternative to formal litigation.
Federal Labor Relations Authority
FLRA’s voluntary Collaboration and Alternative Dispute Resolution (CADR) program integrates ADR into all of the case processes used by the various FLRA components. The services focus on alternatives to traditional case processing and formal dispute resolution.
The CADR program assists the parties both in preventing disputes before they become cases and in finding ways to informally resolve disputes in pending cases. This includes interest-based conflict resolution and intervention services in pending unfair labor practice cases, representation cases, negotiability appeals and impasse bargaining disputes. The CADR program also provides facilitation, training and education to help labor and management develop collaborative relationships.
FLRA regulations for negotiability, unfair labor practice, and representation cases ensure that parties have the opportunity to use ADR to resolve their cases. For example, in negotiability cases, during the post-petition conference, if the parties express interest in using ADR services, the case will be put on hold to give the parties time to get help from the CADR office. In unfair labor practice cases, an ADR process is available that allows the parties to resolve the underlying dispute by facilitating a problem-solving approach, rather than having the regional office investigate the facts and determine the merits of the charge.
For cases on their way to hearing, an administrative law judge settlement program is available for one more attempt at informal resolution.
ADR services are also available in some circumstances for parties who do not have a case filed, but would like assistance with disputes or relationship issues.
The FLRA Office of the General Counsel offers ADR services in unfair labor practice and representation cases, both before cases are filed and while they are pending. The services to agencies and unions include facilitation, intervention, training, and education. In partnership with the Federal Mediation and Conciliation Service, it further provides training on Executive Order 13522 of 2009 (see Labor-Management Cooperation in Chapter 8, Section 6), including on pre-decisional involvement, metrics, forum design, consensual decision-making, facilitation, and bargaining on topics that are negotiable at management’s election (at www.hru.gov—select Course Catalogue, then FLRA—Bargaining Over 5 U.S.C. Section 7106(b)(1) Matters).
Each regional office has a regional dispute resolution specialist who coordinates ADR services within the region. In addition, the ALJ office has a settlement program for parties who have hearings pending before an ALJ, and staff from the Authority members’ offices participate in interventions in negotiability and other cases, offering facilitation to help the parties resolve their differences before the case is ruled on by the Authority.
Further information is at www.flra.gov/flra_adr.
Federal Service Impasses Panel
Once it decides to assert jurisdiction in a dispute, the FSIP may recommend or direct the use of procedures for resolving an impasse through any method it deems appropriate. If the procedure selected does not result in a settlement, the panel may then take whatever final action is necessary to resolve the dispute, including the issuance of a decision and order. The order is binding during the term of the parties’ collective bargaining agreement unless the parties agree otherwise.
Where circumstances warrant, the Panel will select the procedure most likely to lead to a voluntary settlement. The Panel encourages the parties to continue efforts to resolve the issues voluntarily at every stage of case processing.
To maximize the parties’ opportunity to reach a voluntary resolution of the dispute, a Panel-appointed representative (usually a Panel or staff member) explores settlement possibilities with the parties in a face-to-face setting. Should such efforts prove unsuccessful, the representative reports to the full Panel, which then takes final action on the matter.
To provide the parties with a final opportunity to resolve the dispute themselves at the late stage of the negotiation process, a Panel-appointed mediator-arbitrator explores possible areas of agreement. If a voluntary agreement does not occur during the mediation phase, an arbitration hearing then immediately follows. The arbitrator ultimately has the authority to render a binding arbitration decision on those issues not resolved during the mediation portion of the procedure.
The law also authorizes the parties to voluntarily submit a dispute to a private mediator-arbitrator with Panel approval. Further, the Panel may direct an expedited arbitration procedure. Further information is at www.flra.gov/fsip_drpg.
Office of Special Counsel
OSC offers ADR to resolve selected prohibited personnel practice complaints. The Office primarily uses mediation to provide parties the opportunity to resolve an OSC complaint without the need for an investigation or litigation.
Participation in the OSC Mediation Program is voluntary. In selected cases that are slated for referral to OSC’s Investigation and Prosecution Division, the OSC ADR specialist contacts the complainant and the employing agency to invite them to participate in the mediation program. The factors considered include the nature of the case, the relationship of the parties, the complexity of the case, and the relief sought by the complainant. Allegations that do not warrant referral to the Investigation and Prosecution Division are not eligible for mediation.
If both parties agree, OSC schedules a mediation session.
The complainant and a representative from the employing agency attend the mediation. While it is not necessary to have an attorney or other representative attend the session, either party may choose to have representation. The individuals attending the mediation session must have the authority necessary to resolve the dispute. If mediation results in resolution, the agreement is put into writing and becomes binding on both parties.
If one party declines OSC’s invitation to mediate, or decides to terminate mediation before resolution of the complaint, the complaint will be assigned to the Investigation and Prosecution Division, as it would have been had mediation not been offered to the parties. Similarly, if mediation is held and resolution is not achieved, the complaint is assigned to the Investigation and Prosecution Division.
Mediation may be available as an option at the investigation and prosecution stages at the discretion of OSC.
Further information is at www.osc.gov/documents/pubs/adr.htm.
Like the appeals agencies, individual employing agencies have increasingly used alternative dispute resolution techniques and settlement initiatives in an attempt to resolve disputes before they reach the formal appeals stage. Availability of such channels varies among agencies and among sites within agencies. For bargaining unit employees, certain options and procedures might be required by labor-management contracts.
Techniques agencies commonly employ include:
• binding arbitration, involving the presentation of a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of a binding decision;
• conciliation, involving building a positive relationship between the parties to a dispute;
• cooperative problem-solving, most commonly used when a conflict is not highly polarized and prior to the parties forming hard line positions;
• dispute panels, which use one or more neutral or impartial individuals to clarify misperceptions, fill in information gaps, or resolve differences over data or facts;
• early neutral evaluation, which uses an impartial third party to provide a non-binding evaluation that gives the parties to a dispute an objective perspective on the strengths and weaknesses of their cases;
• facilitation, which involves techniques to improve the flow of information in a meeting between parties to a dispute;
• fact-finding, an impartial expert (or group) selected by the parties, an agency, or by an individual with the authority to appoint a fact finder;
• interest-based problem-solving, which aims to effect solutions while improving the relationship between the parties;
• mediated arbitration, in which an impartial or neutral third party is authorized by the disputing parties to mediate their dispute until such time as they reach an impasse;
• mediation, the intervention into a dispute or negotiation of an acceptable, impartial and neutral third party who has no decision-making authority;
• mini-trials, a structured settlement process in which each side to a dispute presents abbreviated summaries of its cases before the major decision makers for the parties, who have authority to settle the dispute;
• non-binding arbitration, which involves presenting a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of an advisory or non-binding decision;
• ombudsmen, individuals who rely on techniques including counseling, mediating, conciliating, and fact finding; and
• peer review, a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision.